Chase v. Chase , 84 Mass. 101 ( 1861 )

Bigelow, C. J,

The intent of the testator to give the benefit of the income of the trust fund created by his will to the wife and children of his son Philip, as well as to his son, is clear and unequivocal. It was intended for their joint support, and for the education of the children. The only question arising on the construction of the will is, whether the income of the trust fund when received by the son is held absolutely by him to be disposed of at his discretion, or whether he takes it in trust, so that the wife and children can seek to enforce its due appropriation in part for their benefit in a court of equity. We cannot doubt that the latter is the true construction ; otherwise it would be in the power of the son to defeat the purpose of the testator by depriving his family of the support and education which was expressly provided for by the will. The adjudicated cases recognize the rule that, where income arising from property is left to a person for the maintenance of children, he will be entitled to receive it for that purpose only so long as he continues properly to maintain them. It can make no difference in the application of the principle, that the person who is to receive the income also takes a beneficial interest in it for his own support. He is not thereby authorized to appropriate the whole of it to his own use, and deprive the other beneficiaries of the share to which they are equitably entitled. Hadow v. Hadow, 9 Sim. 438. Jubber v. Jubber, Ib. 503. Longmore v. Elcum, 2 Y. & Coll. (Ch.) 363. Leach v. Leach, 13 Sim. 304. Hart v. Tribe, 19 Beav. 149. Raikes v. Ward, 1 Hare, 445. Crockett v. Crockett, 2 Phillips R. 553.

The objection to the jurisdiction of the court cannot prevail. The residence of the trustee and cestuis que trust out of the Commonwealth does not take away the power of this court to regulate and control the proper administration of trust estates which are created by wills made by citizens of this state, and which have been proved and established in the courts of this commonwealth. The legal existence of the trust takes effect and validity from the proof of the will, and the right of the trustee to receive the trust fund is derived from the decree of the probate court. If the trustee is unfaithful or abuses his trust, that court has jurisdiction to remove him, in concurrence with this court, on the application of those beneficially interested in the estate. Gen. Sts. c. 100, § 8. In the case at bar, the jurisdiction of this court is clear on another ground. The trustee who by the terms of the will holds the principal in trust, out of which the income is to be raised and paid over to the son Philip for the support of himself and family, is a resident, in this commonwealth. Upon satisfactory proof that the income is misapplied by the sub-trustee, to whom by the will he is directed to pay it, the court can enjoin the trustee, who is within the jurisdiction, from making further payments, and pass such decrees in relation to the future disposition of the income as the rights of the cestuis que trust may in equity require.

Demurrer overruled.