In Re Lowe's Estate ( 1926 )

On Petition for Rehearing. Counsel for appellant have filed a petition for a rehearing upon the ground that in the opinion filed in the case the court has overlooked certain provisions of the will and inadvertently assumed that Mrs. Hampton was clothed with the power to remove the trustee before the residuary estate had vested in the Bankers' Trust Company and before there had been a decree of distribution made in the probate proceedings and the property delivered into the hands of the testamentary trustee. It is asserted that the testatrix intended that the residuary estate, which consists of both real estate and personal property, should first be set aside and distributed by the court under the will to the Bankers' Trust Company, as trustee, and should be delivered by the executors into the hands of that company, before the power of substitution becomes effective; otherwise she never would have used the language contained in clause 14 of the will, wherein she directs the testamentary trustee, upon the order and direction of her daughter, Mrs. Hampton, to transfer and convey all of such property at the time in its hands and possession to such other trust company as her said daughter might designate in writing.

This is a new proposition, raised now for the first time in this petition, and for that reason the court perhaps ought not consider it. Swanson v. Sims, 51 Utah 485, 5170 P. 774; Harrison v. Harker, 44 Utah, 541, 142 P. 716. The only question raised in the briefs and at the oral argument, and the only point decided in the original hearing, was whether or not the testatrix intended in her will to confer upon Mrs. Hampton the power to make a substitution of trustees without assigning any reason therefor and without showing that the trustee named in the will was incompetent or was derelict in its duty in some respect. Upon this question the case was decided, adversely to the contention of the appellant, and the court did not feel called upon to go beyond the briefs and oral arguments and seek for other questions to consider, so that, if we have assumed, inadvertently or otherwise, in the original opinion, that Mrs. Hampton did not exercise her power of substitution prematurely, or if we have overlooked the provisions of clause 14 of the will in relation to their bearing upon this point, our assumption may be justified and our oversight excused upon the ground that counsel did not invite our attention in that direction.

Waiving the objection, however, that it is now too late to raise the question, and looking to the merits of the proposition, we perceive no reason why a rehearing should be granted. The will is not open to the interpretation suggested in the peition. The language used by the testatrix in clause 14, wherein she directs the testamentary trustee, upon the order and direction of her daughter, Mrs. Hampton, to transfer and convey all of the trust property in its hands and possession to such other trust company as the daughter might designate in writing, does not manifest or necessarily imply an intention upon the part of the testatrix that the residuary estate should be first set aside and distributed by the court and delivered by the executors to the Bankers' Trust Company before the power of substitiution should become effective in the daughter. Such language merely shows, in our judgment, that it was her intention that whenever Mrs. Hampton in writing designated another trust company to act as trustee in place of the Bankers' Trust Company, then the latter should transfer and convey the title to and deliver possession, if it then had possession, of the trust estate to its successor in trust. The language used is consistent with this interpretation and is appropriate as an expression of such intention. Some such direction would seem to be desirable, although perhaps not wholly necessary, in view of the statute of this state, section 6371, Compiled Laws 1917, which declares that all testamentary dispositions are presumed to vest at the testator's death, and from the fact that there is nothing in the will to indicate an intention on the part of the testatrix that the vesting of the bequests and devises made therein should be postponed beyond her death. We regard this language as a direction or command from the testatrix to the trustee, whom she had selected, to divest itself of the title to the trust property, which she knew would vest in her trustee at the moment of her death, and to convey the same to the trustee whom the daughter might select, and not as a restriction upon her power limiting the time when she might act or laying down conditions under which she might name a trustee of her own choosing. We are therefore of the opinion that Mrs. Hampton had the right and power under this will at any time after the death of her mother, either before or after there had been a distribution of the property in the probate proceedings, to remove the Bankers' Trust Company from its trusteeship and to name in its stead the Walker Bros., Bankers, and there being nothing in the will which has been called to our attention in the petition for a rehearing which is not entirely consistent with this interpretation or which suggests a doubt in our minds as to the correctness of our position, the petition for a rehearing should be denied.

It is so ordered.