Harshbarger v. Harrison , 124 W. Va. 688 ( 1942 )

I do not agree with that part of the majority opinion which holds that the power of the trustees after the expiration of the five-year period is limited to the disposition of the trust assets.

The trust here under consideration was created for the purpose of paying the creditors of the Twentieth Street Bank the debts owing to them. This is the vital purpose. All others set forth in the trust agreement are secondary or incidental.

The majority opinion places too much reliance on a phrase appearing in the fifteenth paragraph of the trust instrument, and in a measure ignores the other provisions thereof. Construing the trust instrument in its entirety I believe that the time element is secondary to the essential purpose of the trust and that the phrase with reference to the five-year limitation is directory only. I am mindful of the fact that a trust instrument should not be so construed as to violate the rule against perpetuities, and I therefore say that the time for winding up this trust should not be unreasonably extended and in no event beyond a time which would violate that rule.

I do not believe that the trustees appointed in the instrument were diligent in the performance of their duties. It is only just to say that the delay occasioned by this lack of diligence, in part at least, is the cause of the present difficulty of administering and closing the affairs of the trust estate.

The term "liquidate" comprehends a course of conduct — a series of acts — which at the conclusion thereof makes property easy of exchange or disposition, or changes property to its equivalent in current funds.

In my opinion the enforcement of the obligation arising by reason of the indorsement of the notes by defendants is only a step in the process of liquidating the trust assets.

For the reasons herein stated, I believe that the fourth point of the syllabus and that portion of the opinion to which it relates are erroneous. As to the other syllabus points and parts of the opinion, I am in agreement.