Bowditch v. Banuelos , 67 Mass. 220 ( 1854 )

Shaw, C. J.

The respondents deny the jurisdiction of this court to entertain the suit, or to pass any order on the subject, and insist that, under the indenture in this case, Mrs. Banuelos, although a feme covert, has the sole and exclusive power of appointment of a trustee, over which a court of equity can have no control. _

In the first place, without going at much length into a consideration of the elaborate argument, and the numerous authorities cited, in the present case, the court are of opinion that they have jurisdiction in equity.

The equity jurisdiction, by Rev. Sts. c. 81, § 8, in cases of trusts, is given in very large and general terms, of “ all suits and proceedings (when the parties have not a plain, adequate and complete remedy at the common law) for enforcing and regulating the execution of trusts, whether the trusts relate to real or personal estate.”

The appointment and removal of a trustee, the right of the trustee to resign, or of the cestui que trust to require a resignation and transfer, are questions, and often very important questions, amongst many others which might be suggested, arising sometimes upon the law and rules of equity, affecting the respective rights and powers of trustee and cestui que trust, and sometimes on the construction of particular instruments, creating and limiting their powers and duties; and these often give rise to questions, and demand some judicial proceedings; if so, they must be proceedings for regulating trusts, and so they are brought directly within this equity jurisdiction; for, there can be no proceeding in the matter, and of course no remedy, at the common law.

And it is no answer to say, that in some of these cases a power is vested in the judge of probate; for instance, by Rev. Sts. c. 69, to appoint and remove trustees, where trusts are created by a will; and so to appoint, when no trustee is named in the will, by St. 1845, c. 158. The .power of the judge of probate to appoint and remove in case of testamentary trustees, as given by Rev. Sts. c. 69, was afterwards extended to trusts created by deed, by St. 1843, c. 19. But supposing that, by a strict examination of these statutes, it should appear that the probate court would have jurisdiction to remove a trustee on the application of the cestui que trust, or to, allow him to resign on his own, and to direct all necessary and suitable conveyances and discharges, it would, we think, confer a concurrent jurisdiction only, and not an exclusive one, on that court, and, of course, would not supersede the jurisdiction of this. When a jurisdiction has been given in general terms to a higher court, and afterwards jurisdiction is given in particular cases, embraced in the more general one before given, to another court, without express words of exclusion or limitation, it does not take away the jurisdiction already conferred.

Coming then to the main question in the ease, the court consider it a question of construction upon the terms of the original instrument. At the time that instrument was executed, Mary Adeline Thorndike, the settler, was the sole owner of the property, with the entire jus disponendi, the unlimited power of disposal, without control, and was of age to act with full effect, and not only unmarried, but apparently without any particular marriage then in prospect.

With this general power and control over the property, she might make any disposition she thought fit, by way of trust or otherwise, not repugnant to the rules of law. By the terms of the conveyance and the trusts declared, she reserved, with one exception, the entire control of the property, the power to revoke all the trusts, to declare new trusts, and direct any conveyance or transfer at her pleasure. But the one exception was a very significant one, namely, “ except while she may be a married woman; ” and in some measure this exception affords a key to unlock the real intent and purpose of the whole instrument, to secure to herself the entire beneficial interest in the property, during her lifetime, to her separate use, notwithstanding her coverture, and the disposal thereof after her decease, so that it should be in no wise liable for the debts, or subject to the control of any future husband.

But as the conveyance was made by Bourne to Bowditch, as the new trustee, nominated by said Mary Adeline, after her marriage, with the concurrence and approbation of her husband, it was within the exception, and, of course, is to be governed by the other trusts of the deed, and is not to be construed as coming under the unlimited power to revoke and declare new trusts, as expressed in the clause above cited, being the fifth of the enumerated trusts. Besides ; the instrument of conveyance to Bowditch purports on its face to convey the same property held by Bourne, and on the same trusts and with the same powers, and no others.

Some of the trusts, and also the supplementary indenture, relate solely to the care and management of the property, and are immaterial here. The others are, to pay over the income to her separate use, on her receipt, whether married or single; to dispose of the property itself, as she may, by her will, whether married or single, appoint, and in default of such appointment to her heirs. The trustee is to pay all charges and expenses, incident to the care and management of the trust property, to receive a compensation for his services, and be responsible for his own wilful default only. " .

Then comes the clause on which the question depends, “ Said trustee may resign the trust at pleasure, and said Mary Adeline may also at pleasure decide to select a new trustee, and in either case she shall nominate a new trustee in writing, and said Ezra shall, as soon as may be, transfer and convey all the trust property, then held by him, to such new trustee, who shall thenceforth have and exercise all the rights and powers, and be subject to all the duties, hereby vested in or imposed upon said Ezra.” So in like manner she is to nominate a new trustee, in case of the death of said Ezra, or his inability in any event to act as such trustee. On this instrument, it is contended that the power of Mrs. Banuelos to nominate a new trustee in case the former trustee should exercise his right to resign, or at her pleasure, if she for any cause, prefers a new trustee, is limited to one appointment, after the trustee first named; that limiting the right and the duty to “ said Ezraj” made it personal in him ; and that when she had made the appointment of one trustee to succeed him, her power was exhausted. But we think this is not the true construction of the instrument. Looking at the relation in which the settler stood, the general purposes of the trust, with the particular clauses to be construed, it was intended to place and continue the property under the same trusts, and subject to the same modes of transfer, in the hands of the successive trustees, as of Bourne, the first named. When it is said in the clause quoted, that in case she shall at her pleasure nominate a new trustee, “said Ezra” shall transfer, it manifestly means “ said Ezra ” in his capacity of trustee, and is equivalent to the phrase, “ the said trustee ” shall transfer. Besides; the new trustee shall have all the rights and powers, and be subject to all the duties, vested in and imposed upon “ said Ezra.” One of these rights, vested in said Ezra, and by this clause vested in the new trustee, is to resign the trust at pleasure; one of the duties is, (in case she shall at her pleasure decide to appoint a new trustee and nominate one in writing,) as soon as may be, to transfer and convey the trust property to the new trustee.

But when we say, that she had a power at her pleasure to appoint, we do not mean to say, that this was an arbitrary power, to appoint a person unfit or unsuitable to execute such a trust; as a minor, an idiot, a pauper, or person incapable of performing the duties. It must be a person of full age, sufficient mental and legal capacity, and in all respects capable of performing the required duties. In case of trust property consisting of real and personal estate, we are not prepared to say, whether an alien not naturalized, and not capable by law to hold real estate, would or would not be .a suitable or legal appointment. We think the power was not exhausted by the appointment of' the first substitute to Bourne, but that the same power existed, on every resignation, to appoint a new trustee, pursuant to the original trusts; but that this power, by necessary implication, was limited to the appointment of a person legally capable of executing it.

Whether the nomination of her husband by Mrs. Banuelos would, on account of that conjugal relation, have been so incompatible with the scope and purpose of the whole instrument, as would constitute a valid objection to his appointment; or whether the fact, if it^was so, that Mr. Enriquez was a foreigner, having no domicil in the United States, and was an alien not naturalized, would have been a valid objection to him; had she persisted in either of these nominations, and required the opinion of the court thereon, we have no occasion to decide, be cause both nominations have been revoked and withdrawn. As the nomination of Mr. Ripley has since been made, to which there is no exception, there can be no hesitation, on the part of the court, in confirming that nomination, and directing that the petitioner make the necessary transfers and payments to Mr. Ripley as such trustee, and that thereupon the petitioner be exonerated and discharged from further responsibility.

In regard to the question of jurisdiction, which, in the events that have occurred pending the suit, seems to be the only one of any importance, we might have added, that the jurisdiction of the court, to entertain a suit respecting the regulation of these trusts, does not depend on the consideration whether Mrs. Banuelos- had or had not the exclusive power to nominate a new trustee, or whether after coverture, this was to be done by herself, as her own separate act, or with the assent or concurrence of her husband. If a question could be raised about it, the different parties might take opposing views of such question, it would then be a controversy involving great interests and im portant rights of property. It seems hardly to admit of doubt, that the beneficiary, the cestui que trust, might by the terms of the statute have had a suit in equity to enforce its execution; and it seems to follow, as a necessary consequence that, upon similar questions in controversy, the trustee, when necessary, may invoke the aid of the same tribunal.

jDecree confirming the appointment of Mr. Ripley, directing the necessary transfers and acquittances, with costs for the petitioner, payable out of the fund.