Whelan v. Reilly , 3 W. Va. 597 ( 1869 )

Maxwell, J.

John, Philip and Mary Jane Reilly, the three surviving children of the late Philip Reilly, deceased, filed their bill to set aside the last will and testament of the said Philip Reilly, deceased, which had been, before the bill was filed, admitted to probate as a testamentary paper in the office of the recorder for Ohio county.

The court, on the hearing of the cause, by decree entered, declared the trusts raised in the will illegal and void, because, in the opinion of the court, they entail the property devised in perpetuity to the trustees and their successors beyond the period allowed by law.

The petitioners here, insist that the said decree is manifestly erroneous, and that the devises and bequests in the said will and codicil contained, and the trusts therein contained, are, and each of them is, lawful and valid and should have full force and effect given to them and each of them.

The appellees claim that the trusts created by the will are illegal and void upon three grounds :

1st. Because it creates a body of trustees with perpetual succession, upon whom it casts the legal title of the property.

2d. Because the trusts created by the will are void for indefiniteness and uncertainty.

3d. Because it creates a perpetuity and ties up the property from alienation and use for a longer period than the law permits.

The' most convenient order of considering the questions arising upon the record of the cause, is to take them as stated by the appellees. The testator, after providing for his wife, proceeds:

“Secondly. I devise and bequeath to Bichard Y. Whelan, Henry Moore and Charles W. Bussell, of the city of Wheeling, as trustees, all the rest, residue and remainder of my estate to which I am now entitled, or shall be entitled at the time of my death, wheresoever situated, and whether real or personal, or of what nature or kind soever.”

The codicil substituted Alonzo Boring as trustee in place of Charles W. Bussell.

The third clause of the will is as follows:

“In case of the death of one of said trustees the two survivors of them shall have power by writing, under their hands, or by deed, to appoint another trustee in the room of the deceased, and so from time to time, when one of any three trustees shall die, the two survivors for the time being shall have power in the same manner to appoint another trustee in the room of the deceased; upon any such death of a trustee, all the estates, rights, powers and duties of the trustees shall survive to the two surviving trustees, and upon the death of one of them (leaving but one surviving trustee) to such survivor; but upon such appointment being made at any time the trustee so appointed shall thenceforth equally, with the two trustees appointing, have and be invested with and exercise all the estates, rights, powers and duties of the trustees under this will; my intention is to provide a mode of keeping up the number of three trustees without suspending the execution of the trust, while the number shall be less, and if one.trustee shall at any time refuse, disclaim, or by deed, resign the trust, the other two shall have power, by like appointment, to appoint another trustee in his stead in like manner, and in like effect, as if he were dead.”

It is upon this clause that the appellees ground their fir3t objection to the validity of the will. The trusts created b}r the will would not be allowed to fail for want of trustees if there was no provision in the will for their appointment, but a court of chancery would appoint them. Hill on Trustees, p. 190.

It is well settled that trustees may be clothed by the testator with power to appoint their successors. The power must be exercised, however, by the number of trustees, and in the manner indicated in the will. Hill on Trustees, p. 175-6-7, &c.; Lewin on Trustees, p. 465-6-7-8-9, &c.; Attorney General vs. Floyer, 2 Vernon, 748. The trustees then in this ease may, at any time, in conformity to the power given in the will, appoint other trustees, and all new trustees, when so appointed, will have the same powers as those appointed by the testator.

The fifth, sixth and seventh clauses of the will are in form the same, each one applying to a different son of the testator.

The fifth is referred to as a sample.

After describing in this clause a certain tract of land in Marshall county, the testator proceeds:

“I do direct that until the death of m37 said son John, and thereafter, until one of his children shall have attained to the age of twenty-one j-ears, the same shall be held, leased, managed, used and disposed of by the trustees, at their discretion, and the net proceeds or profits thereof, or so much of such proceeds or profits as the trustees may think proper, shall be applied to the support of the said John and his family, or such of them as the trustees mav’ think proper, in such sums, in such manner, and at such times as the trustees may think proper, (support in this clause being meant to include education as to the children), and thereafter the same land shall be held in trust for the children of said Johu heretofore and hereafter born, equally, in fee simple ; if all the children of said John die before attaining the said age, then, upon, the death of the last survivor of such children, and said John, if any of such children leave a descendant, the same land shall be held in trust for the descendants of said John, in fee simple, in such shares as if they' inherited the same from him, according to the present law of descents in Virginia.”

The second point made by the appellees, that the trusts are void for indefiniteness and uncertainty, is founded on this and the seventh clause; William, the son referred to in the sixth clause, having died unmarried and without issue in the life time of the testator. The certainty or uncertainty of the trust created in this clause will depend ■upon the meaning of the words “John and his family.” If the meaning of the testator cannot be'ascertained, the trust 'is no doubt void for uncertainty, but it is the duty of the court to ascertain the meaning if it be possible.

The word family may moan children, wife and children, blood relations, or the members of the domestic circle, according to the connection in which the word is used.

It has been held that family prima facie means children, and that such construction ought to be adhered to, unless some reason be found in the context of the will for extending or altering it. Gregory vs. Smith, 41 En. Chy. Rep., 708.

The language of the will is “shall be applied to the support of said John and his family, or such of them as the trustees may think proper, in such sums, .in such manner, and at such times as the trustees may think proper, (support in this clause being meant to include education as to -the children).”

It is apparent from the language used that the testator meant children in the use of the word family, and that the will must be construed to mean “John and his children.” Gregory vs. Smith, 41 English Chy. Rep., 708; Parkinson’s Trust, 40 Ib., 242; Beales vs. Chrisford, 36 Ib., 592; Wood vs. Wood, 25 Ib., 65; White vs. Briggs, 22 Ib., 583; Woods vs. Woods, 13 Ib., 449; Hill on Trustees, 77; Hill’s ex’rs vs. Bowman and others, 7 Leigh, 650.

The trusts created in the fifth and seventh clauses of the will are not, therefore, void for uncertainty as to the devi-'-sees.

The beneficiaries in the residuary clause are as certain as those in the special clauses. In this connection it is insisted that the trusts are void for the uncertainty in the discretion given by the will to the trustees.

It is well settled that a discretionary power may be conferred on trustees either by the express terms of the trust or by implication from the nature of the duty imposed on them whenever the object of the trust is certain. Hill on Trustees, 485; Frazier vs. Frazier, 2 Leigh, 642; Cochran vs. Paris, &c., 11 Grat., 348; Steele vs. Livesay, Ib., 454; Robininson vs. Allen and others, Ib., 785; Harrison vs. Harrison’s adm’r, 2 Grat., 1; Shearman vs. Hicks, 14 Grat., 96; Huntington vs. Winchell, 8 Conn. Rep., 45; Hill’s ex’or vs. Bowman, 7 Leigh, 650; Cowles, &c., vs. Brown, &c., 4 Call, 477; McGaughey’s adm’r vs. Henry, &c., 15 B. Monroe, 383; Leavitt vs. Beirns, et al., 21 Conn. Rep., 1.

The objects of the discretionary powers of the trustees, both in the specific and residuary clauses, being certain, the discretionary powers are properly conferred on the trustees.

By the death of William in the lifetime of the testator, the specific devise in trust for the benefit of him and his family, in the sixth clause of the will, lapsed, and by the second and twelfth clauses of the will passed into the residuary fund. Frazier, &c., vs. Frazier ex’r, 2 Leigh, 642.

The thirteenth clause of the will provides, that “the income of said residuary fund, until the death of the last survivor of my three children, William, Philip and Mary Jane, shall also be, from time to time, invested by the trustees in bonds of the State of Virginia, and become part of the principal of the said residuary fund, unless the trustees shall think proper to apply any part of such last mentioned income (which they arc hereby authorized .to do) .to the support and maintenance of any or all of my said three last named children or their families, or to the education of any of their children or other descendants, but such application shall be made only according to the uncontrolled discretion of the trustees-”

The fourteenth clause provides that, “after the death of the last survivor of my three children, William, Philip and Mary Jane, the said residuary fund shall be held in trust for the children and other descendants then living of my said three last named children, or such of them as may have a descendant then living,- and all such descendants shall have equal shares as among themselves without regard to any difference in degrees of relationship or descent.”

The appellees claim that these two clauses as' to the residuum, and the fifth and seventh clauses as to the property therein mentioned, create a perpetuity, and tie up the property from alienation and use for a longer period than the law permits.

' The fifth clause provides that after the death of John, and after some one of his children shall attain the age of twenty-one years, the land in the said clause named shall be held in trust for the said children, in fee simple.

The fourteenth clause provides that, “after the death of the last survivor of my three children, William, Philip and Mary Jane, the said residuary fund shall be held in trust for the children and other descendants,” &c.

It is claimed that the language used, does not vest in the persons designed to take at the time specified any title to the property, but that the legal title remains in the trustees after that time, and so creates a perpetuity.

An'executory devise, either of real or personal estate, is good if limited to vest within the compass of a life or lives in being and twenty-one years afterwards, adding thereto, however, in case of an infant en ventre sa mere, sufficient time to cover the ordinary period of gestation of such child. But the limitation, in order to be valid, must be so made that the estate, or whatever is devised or bequeathed, not only may, but must, necessarily vest within the prescribed period. It is admitted that the estate devised by the fifth and seventh clauses of the will must vest, if it vests at all, within the prescribed period, and that the estates bequeathed by the residuary clause must vest, if at all, at the death of the survivor of the three persons, John, William and Mary Jane, but the matter disputed is that by the language used in the will the property will not vest in the beneficiaries at any time, but will remain perpetually in the trustees.

The manifest intention of the testator was to vest in the beneficiaries, at the time specified, the property devised in trust. The only question, therefore, to be determined is, whether by the language used this 'intention, will be carried out.

By the words the equitable title to the property conveyed in. trust will, at the time specified, vest in the beneficiaries, and if the trusts had been created by deed instead of by will, the legal title would then vest absolutely in the beneficiaries, under the statute of uses, as it is called, but strange as it may seem, this statute does not apply to trust estates-created by will.

By the terms used the legal title will remain in the trustees upon the happening of the events, on which the beneficiaries will take the equitable title, but the property will then be subject to the control and liable to the debts of the beneficiaries, and it will be the imperative duty of the trustees at onee to convey the legal title to the property to the beneficiaries, or as they may otherwise direct; and if they should refuse to do so, a court of chancery would compel them to convey at their costs. Hill on Trustees, 278, 279, 316, 317.

The equitable title to the property being vested in the beneficiaries, and the property itself being subject to their control at the time specified, although they may have to resort to a court of equity for its assistance to obtain the legal title, no perpetuity is created by the will.

The decree complained of is therefore erroneous, and ought to be reversed, with costs to the appellants; and this court, proceeding to enter such decree as the court below ought to have rendered, should dismiss the complainant’s bill.

The other judges concurred.

Decree reversed.