Ward v. Ward, 95 Ala. 331

Ward v. Ward

95 Ala. 331 | Ala. | 1891

McCLELLAN, J.

We do not understand from this record that the Chancery Court declined to assume jurisdiction and control over the trusts created by the will of Benjamin Ward for the support of his wife and children, to the end of determining what provision would be reasonable and proper in that behalf, and compelling the trustee to make such provision. On the contrary, we find that the lower cour*335virtually asserted its right and power to determine what allowance should be made by the trustees for the maintenance of the testator’s widow and children and for the education of the children, and, of consequence, its authority to compel such allowance to be made, though counsel argue the question whether this matter should be left entirely to the trustee’s discretion as if they understood the position of the chancellor differently; and there can, in our opinion, be no doubt the right and power thus asserted resides in the Chancery Court, and should be exercised by it whenever it is clearly made to appear that the trustee is not adequately providing for the well-being of the cestui que trusteni according to the terms and spirit of the trust instrument. — McDonald v. McDonald, 92 Ala. 537, and authorities there cited.

What the court really decided in this connection, however, was that a case had not been made by the evidence which required or authorized the exercise of this jurisdiction, it not being made to appear that the trustee had failed or was omitting to make proper allowance for the support and education of the cestuis que trust. When the cause came on for hearing, the widow was no longer a party to it; she had had herself eliminated from the bill as a party complainant; she was not a defendant, and she was asking no action of the court looking to an increase of the allowrance for support theretofore made to her by the trustee. Before this withdrawal on her part a reference had been had in response to the pniyer of the bill as originally exhibited, to determine what would be a reasonable allowance for her and her three children; and the master had reported that two hundred and fifty dollars per month should be allowed, instead of the one hundred and fifty dollars per month which the trustee was then paying on that account. The evidence taken on this reference, and the report made, however, had relation to an allowance in gross for the children and for the widow. No evidence was adduced, and no report made, as to what should be allowed for the support and education of the children, who were the sole complainants in the bill at the hearing, and who only were demanding an increase of the provision made by the trustee for them. The court did not pass on the master’s report while Mrs. Ward remained a party complainant to the cause. Whether, had she main-' tained her original attitude, the additional allowance to her and the children reported by the master should have been decreed, is a mere abstraction on this appeal, — an inquiry not presented for our consideration. There was nothing in the report, or in the evidence supporting it, which could *336afford a basis for determining wbat provision was proper for the children alone. This depended upon testimony which they had the on-us of adducing — as was said by the chancellor, they are not entitled under the will to any fixed allowance (Ellerbe v. Ellerbe, 40 Am. Dec. 623) — and having-failed to show what amount they were entitled to, or that the sum allowed by the trustee was inadequate, the refusal of the Chancery Court to increase that allowance, or indeed to make any decree fixing their allowance, was inevitable.

Nor was there error in the construction given to the 4th clause of Benjamin Ward’s will, which is as follows: “I desire, if agreeable to the parties concerned, that my mother, father and sister shall continue to reside with my family, and that my trustee shall contribute towards their support out of my estate as I do at this time.” It can not be that the testator, solicitous for the maintenance of his father, mother and sister, and who had contributed largely to their support during his life, intended to make their future well-being to depend upon their continuing to reside in the same house with his widow, and to make such continued residence dependent upon the fact of its being agreeable to her, who was a stranger to their blood, and whose interests would be conserved by defeating his laudable purpose in respect to them. We concur with the chancellor that the support of the testator’s father, mother and sister provided for in this clause of the will was not conditional upon their continued residence with the widow and her family; and with him also, on the showing of the answer, that the provision made for them by the trustee was such as was being made for them by the testator at the time of executing the will, and hence within its expressed limitations.

At the time of filing her petition dissenting from the will and-claiming a distributive share in her husband’s estate, Mrs. Ward was not a party to the cause pending in the Chancery Court; she was as much a stranger thereto as if she had previously had no connection therewith. Yet she was a necessary party to that cause. There could be no settlement of the trusts of the will, or the administration of the estate, without her rights being before the court and represented by her as a party litigant in the widest sense of the term. Whether she dissents from the will or takes under it, her rights as a party to the cause are co-extensive with those of any other of the necessary parties in the sense of shaping the litigation, being heard upon any action taken and any decree to be rendered in it. Her claim is not of a specific sum to be paid out of a fund in court, as in the case *337of a receivership which has become indebted to a person' having no , interest in the controversy between the complainants and defendants to the canse, and which may be preferred by a mere petition since it involves no element either of prosecution or defense in the case presented by the bill and answer (Thornton v. Highland Avenue & Belt Railway Co., 94 Ala. 353); but, if she comes into the cause at all, it is for all the purposes of prosecution or defense as the case may be; and she can not make herself a party fox-such purposes by a petition. She can only get into this cause, strictly speaking, by the action of the present complainants through an amendment of their bill; or, failing in that, she map effectuate whatever rights she may be entitled to by an.original bill in its nature suppletory to the present litigation. The chancellor properly dismissed her petition. Cowles v. Ledyard, 39 Ala, 130; Renfro Bros. v. Goetter, Weil & Co., 78 Ala. 314; Ex parte Printup, 87 Ala. 148.

Affirmed.