Williams v. Gardner ( 1916 )

The plaintiff was appointed trustee to succeed Mr. Pine as testamentary trustee under the will of John Wolfe, pursuant to § 249 of the General Statutes. Neither the statute nor the general law authorizes the successors so appointed, of testamentary trustees, to exercise special discretionary powers founded upon personal confidence conferred by a testator upon the latter. Whitaker v. McDowell, 82 Conn. 195,199, 72 A. 938; Pratt v. Stewart, 49 Conn. 339,341. But powers conferred by the testator, which the testamentary trustee, if acting, would be required to execute, it is the duty of his successor so appointed to execute. In the former case the execution of the power depends upon the mere discretion and will of the donee of the power, and the court cannot control his discretion or exercise it in his stead, and at his death the power ends. Security Co. v. Snow, 70 Conn. 288, 292,39 A. 153; 1 Perry on Trusts (6th Ed.) § 248. In the latter case the power is coupled with a trust which a court of equity will compel the donee to execute, or, in case of his death or refusal to act, will execute by itself or another trustee appointed by it. 1 Perry on Trusts (6th Ed.) § 248; Sells v. Delgado, 186 Mass. 25, 28,70 N.E. 1036; Hicks v. Hicks, 84 N.J. Eq. 515, 518,94 A. 409, 411; Osborne v. Gordon, 86 Wis. 92, 95,56 N.W. 334; Russell v. Hartley, 83 Conn. 654, 663,78 A. 320.

In the present case if the testator's intention was to give to the testamentary trustee merely the power, if he saw fit, to turn over the corpus of the trust estate to the testator's son, the power was simply discretionary, and so far as the trustee in his lifetime failed to execute it it ended with his death and cannot be executed by his successor; but if the testator intended to impose upon the trustee the duty of making an inquiry, at the times indicated, into the social and business character and relations of the son, and, if it appeared upon such inquiry that the son would manage the property prudently and economically, to turn a portion of it over to him, then a trust was imposed upon the trustee to make the inquiry, and if from the inquiry it was his judgment that the son would manage it prudently, to transfer the portions as indicated. In the latter case, the trust not having been fully executed when the original trustee died, it would devolve upon the plaintiff as his successor to complete the execution of it.

The testator's intention must be sought in the will. The record does not disclose the son's age or any of the circumstances under which the testator made it. It appears that the trust fund amounted to about $50,000. We think it plain from the eleventh paragraph of the will, that the testator intended that his son should receive the entire trust estate to which the paragraph relates, in three equal parts, one at the end of six months from the time when the fund should come into the trustee's hands, one at the end of two years from that time, and one two years later, provided at these dates the son's social and business character and relations were such that he would be likely to prudently and economically manage the same; that these payments were not to be at the mere discretion and will of the trustee, but were to be absolute upon a finding that the son was so qualified; and that the testator ordered and directed the inquiry to be made by the trustee to the end that he should thereby form a judgment and find whether the son's social and business character fitted him to so manage the property if delivered to him, and if the trustee so found, ordered and directed that the portions of the fund indicated should at once be paid to him. The entire paragraph shows that the testator's plan and expectation was that the son should receive the entire corpus of the estate, but that if he should be found incompetent to manage it, that the income only should be paid to him. The language is not such as would have been used had the testator's intent been to give the life use of the property to the son with a discretionary power in the trustee to turn over a portion of the principal to the son if he saw fit. The paragraph begins by providing that the income shall be paid to the son during the life of the trust. It is to be paid to him for life only in case he fails to survive the life of the trust, which is to be ended by the payment to him of the principal as later provided. The times and amounts of the payments from the corpus of the trust estate are fixed by the testator. He provides in what manner it shall be determined whether the son is capable of managing the property if turned over to him. It is only in case that all these, and an additional careful inquiry provided for in section 5, shall fail to satisfy the trustee of the son's competency, that the latter is to receive only the income of the fund, and then, under section six, the trustee is to pay over a portion of the corpus if the income is insufficient for the son's needs. The determination, by such an inquiry, whether the son is capable of prudently managing the property, can be done by the court or a succeeding trustee as well as by the person appointed by the will. The power to sit in judgment is not a naked power. Hicks v. Hicks,84 N.J. Eq. 515, 518, 94 A. 409, 411. The power of inquiry and determination given by the will was a power in trust for the benefit of the testator's son, and a court of equity could enforce the execution of it had the testamentary trustee neglected or refused to execute it. Its execution having been interrupted by the death of the original trustee, the further performance of it devolves upon his successor, the plaintiff.

The Superior Court is advised to instruct the plaintiff that, as successor in trust to said Charles H. Pine, he is entitled to make the careful inquiries into the social and business character and relations of the said Carl L. Wolfe directed to be made in the fourth and fifth sections of paragraph eleven, and if from such inquiries it is his judgment that said Carl L. Wolfe would prudently and economically manage the balance of the trust estate now in the plaintiff's hands it will be the duty of the plaintiff to transfer the same to him.

No costs in favor of either party will be taxed in this court.

In this opinion the other judges concurred.

"XI. 1st. Of said latter of said equal parts or shares of said rest, residue and remainder of my estate so given in trust as aforesaid, I will and direct said trustee thereof to pay and deliver to my aforesaid son, the said Carl L. Wolfe, in semi-annual payments, the entire net rents, interest and income thereof, for and during the life of said trust; or for and during the term of the natural life of said Carl L. Wolfe, if said trust so long continue, the same to be to him as his own absolute estate forever, relieved of said trust.

"2d. My will is, and I hereby order and direct said trustee of said trust estate within six months after receipt by him as such trustee of said estate, and after written request of my said son, the said Carl L. Wolfe, for such purpose, to make careful inquiry into the social and business character and relations of my said son; and if after such careful inquiry said trustee be of opinion that my said son would prudently and economically manage the same, thereupon to transfer, convey and deliver to my said son one equal one-third part of said latter one-half part of share of the corpus of said rest, residue and remainder of my said estate, so given, devised and bequeathed in trust as aforesaid, to be to him, the said Carl L. Wolfe, as his own absolute estate forever, relieved of said trust; but if said trustee after said careful inquiry into the social and business character and relations of my said son be of opinion, that he the said Carl L. Wolfe will not manage said estate with prudence and economy, then said trust shall continue and remain as though this paragraph of this my will had not been written.

"3d. And further my will is, and I hereby further order and direct said trustee of said trust estate, after the conclusion of two years after the foregoing careful inquiry into the social and business character and relations of my said son, the said Carl L. Wolfe, and after written request of my said son, the said Carl L. Wolfe, for such purpose, to make another and further careful inquiry into the social and business character and relations of my said son, the said Carl L. Wolfe, as ordered and directed in the next preceding paragraph of this my will; and if after such careful inquiry said trustee be of opinion that my said son would prudently and economically manage the same, then and thereupon said trustee shall transfer and deliver to my said son, the said Carl L. Wolfe (if no antecedent payment, transfer or delivery of the corpus of said trust estate shall have been made by said trustee to said Carl L. Wolfe