Morton v. Southgate , 28 Me. 41 ( 1848 )

The opinion of the Court was drawn up by

Wells J.

— The defendant was appointed trustee, by the judge of probate, acting in conformity to the will of Reuben Morton.

The plaintiff prays the Court, to direct the trustee, to convey the property, held in trust, to him, the cestui que trust.

There is no doubt, that a court of equity has power, to compel the execution of a trust, whenever equity may require it; and whenever a trustee neglects to act, in obedience to the requirements of the trust, the Court may discharge him, and appoint another. And this Court as a court of equity, may hear and determine all cases of trust. Rev. Stat. chap. 96, § 10. But in cases of testamentary trusts, the action of the Court is to be “ subject to any provisions contained in the will,” and it is forbidden to “ restrain the exercise of any powers, given by the terms of the will.” Rev. Stat. chap. 111, § 12.

Where, by the'will, a discretion and option is given, to be exercised according to the judgment of the trustee, and such is the plain intention of the testator, it is very doubtful, whether the Court can substitute its own judgment, for that of the trustee. It is not within the power of the Court, to say, that the will of the testator is unwise, and make a new one. The bounty of the testator is to be enjoyed in the manner, which he has prescribed.

The trustee, in the present case, is authorized and directed to convey the property to the plaintiff, whenever he “shall become perfectly satisfied, that it will be for the best interest and advantage and happiness of said David,” &c.

The trustee is not directed to act, in conformity to the judgment of others, however sound and enlightened, but according to his own. If his own comes in conflict with that of others, he is not bound to yield it up, upon the happening of such a diversity.

Although the devise, in the present case, is clearly a trust, with power to determine when the trust shall cease, and does not involve the inquiry, as to the difference between a power and a trust, yet some light may be obtained by the aid of decisions, on that subject. In Story’s Eq. Juris. § 1070, it is said, whenever a clear discretion and choice to act, or not to act, is given, courts of equity will not create a trust, from words of recommendation. In the nature of things there is a wide distinction between a power and trust. In the former, the party may, or may not, act in his discretion. In the latter, the trust will be executed, notwithstanding his omission to act.

The defendant holds the property for the benefit of the plaintiff, but it is left to his discretion, as to the time, when the trust shall be terminated, by a transfer of the property. The defendant has the power to determine, when that event shall take place, a power expressly given, not overshadowed by a single doubt. The testator contemplated a time, when the property should be transferred, but the proper time involves a matter of judgment, confided solely to the trustee. But if the Court possessed the power, to direct a transfer, the exercise of it could only be justified, where the transfer was delayed, for reasons clearly unsubstantial and unjustifiable. The proof, to overrule the discretion, should be of the fullest and clearest character. No doubt the deponents, who have testified to the ability of the plaintiff, to manage his property, have given their testimony honestly, but they do not appear to have had the fullest means of testing his ability and capacity, to take care of property, to any great extent. Taking the whole testimony together, it is not so convincing, as to induce the Court, even if it had authority to act, to direct the trustee, to convey the property to the plaintiff.