In re Hall ( 1881 )

Barnard, P. J.:

The petitioner was not a trustee of an express trust under 1 R. S., 728, | 55. Edgar Hatfield conveyed to Hall all his property, both real and personal, “ in trust, nevertheless, for my use, benefit and advantage.” Hall was to manage and control the estate “ in his discretion, and shall, from time to time, give me therefrom such sum or sums as I may need or require and he shall deem reasonable and prudent for my comfort, support and interest, and shall pay therefrom such debts as I may contract and desire him to pay, and he shall deem it just and prudent to pay.” This trust is within neither of the four classes of trusts authorized by section 55. The section (1 R. S., 730, § 69) which permits a court of chancery to accept a resignation of a trustee upon his petition, has reference only to such trusts as are known, as express, under the statute.

As between the parties to the deed the order should not be upheld. There being no legal express trust the money belonged to Edgar Hatfied and should have been paid to him.

The order should be modified, without costs, and money ordered to be paid to Edgar Hatfield.

Gilbert, J., concurred; Dykman, J., not sitting.

Order so modified as to direct the money to be paid to Edgar Hatfield; order to be settled by Barnard, P. J.