98 Me. 55 | Me. | 1903
This is a bill in equity brought to obtain a judicial construction of the will of Herman Elvas Davidson, late of Bar Harbor in-the State of Maine.
On the fourth day of August of the same year, he executed the following codicil to his will-: “By this codicil to my last Will and Testament, dated in June 1890, made this fourth day of August, eighteen hundred and ninety, I hereby appoint my two daughters, Alice Bowker Davidson and Edith Bowker Davidson, trustees of my estate, which I bequeath to them. I hereby bequeath all my estate both real and personal to my aforesaid Trustees, the same to remain in their care during their lifetime, with power to keep or change any of the investments as they may deem fit and to pay over to themselves in equal portions, all the income of said principal, and to dispose, by will or otherwise, their portion of said principal after their death.
“And I hereby order that the above named Trustees shall not be required to give any bonds for their fulfillment of the within trust.”
The-testator died on the tenth day of the same month, and the foregoing will and codicil were duly admitted to probate in the County of Hancock. The plaintiff and defendant are the testator’s daughters named in the will and codicil, and it is alleged in the plaintiff’s bill and admitted in the answer that they “are the only living persons interested, or who by possibility may be interested in the subject matter of this bill.” The plaintiff asks the court to determine what interest in the testator^ estate the plaintiff and the defendant each respectively acquired by virtue of this will and codicil, and whether or not each is entitled to one-half of the estate, “absolutely
It is a familiar rule of law that where the legal and equitable estate in the same land becomes vested in the same person, the equitable will merge in the legal estate, if the latter is equally extensive with the former; “for a man cannot be a trustee for himself nor hold the fee, which embraces the whole estate and at the same time hold the several parts separated from the whole.” “No person can be both trustee and cestui que trust at the same time, for no person can sue a subpoena against himself.” 1 Perry on Trusts, §§ 18 & 347. See also 2 Pom. Eq. § 988; Wills v. Cooper, 1 Dutcher, 25 N. J. 137; Bolles v. State Trust Co., 27 N. J. Eq. 308; Mason v. Mason’s Ex’rs, 2 Sandf. Ch. 433. But in equity this is not an inflexible or universal rule, and it will not be applied contrary to justice or the intention of the parties, but the two estates may be kept separate and a trust allowed to subsist, if necessary to protect the equitable interest of the owner.
In the case at bar it has been seen from the terms of the codicil that the testator resorted to this legal solecism of constituting his daughters trustees for themselves, for the apparent purpose of limiting their enjoyment of the estate to the use of the income during their lifetime, and of preventing any alienation of the principal except by “will or otherwise” to take effect at their decease. He evidently attempted to establish a trust to insure the preservation of the corpus of the estate unimpaired during their lives, but at the same time desired to give them substantially the same dominion and control over the property that they would have had if no attempt had been made to create a trust. The plaintiff’s bill, as well as the testator’s codicil, is silent respecting the nature and value of the estate, the situation and circumstances of the parties, what had transpired in the conduct or social relations of the legatees during the two months which intervened between the will and the codicil, and the particular consideration which in fact induced the testator to attempt to modify
“There is no doubt of the power and duty of the court to decree the termination of a trust, where all the objects and purposes have been accomplished, where the interests under it have all vested, and where all parties beneficially interested desire its termination. Where property is given to certain persons for their benefit and in such a
In Dodson v. Ball, 60 Pa. St. supra, the purpose of the trust was substantially the same as that in the case at bar, and apart from the identity of trustees and beneficiaries, the facts were also analogous to those in the principal case. In the opinion the court say: “The only useful purpose visible in the deed (of trust) was the preservation of her property to her sole use . . . and its transmission by will or descent.....The trust is purely passive requiring no active duty except conversion for her benefit and advantage; and if the trust as expressed does not in fact break the' course of descent, there seems to be no good reason to interpret it so as to divest her of her control of her own property, and the trust should fall.”
In regard to the utility and necessity of merely passive trusts where the trustee is a simple depositary of title, this court has said in Sawyer v. Skowhegan, 57 Maine, 500: “They tend to obscure titles, mislead the public and facilitate fraud, and it was the object of the statute of uses to abolish them. Hence, we find the courts discouraging them. . . . They are not useful.”
It is accordingly the opinion of the court that upon an amendment to the prayer of the present bill asking that the alleged trust in this case be declared terminated, no sufficient cause is shown why the plaintiff will not be entitled to a decree of the court to that effect. The bill should also be further amended by adding a distinct allegation that these parties are the only heirs of the testator.
Cause remanded for further proceedings, in accordance with this opinion.