Babcock v. African Methodist Episcopal Zion Society

Greene, J. The defendants’ appeal sets up nine reasons of appeal. The first is that the court erred in overruling the second ground of demurrer to the complaint, which was that the allegations of the complaint do not show “a change of circumstances or in the conditions of such real estate” within the meaning of § 1034 of the General Statutes. The complaint shows that the original trustees are dead, and that they appointed no successors. The trust deed contemplated a sale and conveyance either by them or by successors to be appointed by them. It is evident that there has been such a change of circumstances as prevents the execution of the trust in exact accordance with the terms of the deed. There is no merit in the first reason of appeal. The second reason is the overruling of the third ground of demurrer to the complaint, which was that the allegations of the complaint do not show that the execution of the trust in exact accordance with the terms of the deed is, or will become, impossible, or that the execution of the trust must fail to secure the objects manifestly intended by the grantors. The same facts which show that there is no merit in the first reason show that there is no merit in the second. The third reason is the overruling of the demurrer to the second claim for relief, the ground of which is *472 that the Superior Court had no power to bestow on, or delegate to, the appointee of the Court of Probate the power to determine whether it is best for said society to make the proposed sale, purchase, and investment of the balance of the purchase money. As the Superior Court did not bestow on, or delegate to, said appointee such powers, there is no merit in the third reason of appeal. The fourth reason of appeal is that the court erred in holding that the power of sale in the trust deed did not cease to exist on the death of the original trustees. Whether the power of sale ceased with the death of the original trustees, depends on the intent of the grantors, as shown by the language of the deed, read in the light thrown on it by their circumstances. They intended that the church property should be held for the society as long as its interests required holding, and sold when its interests required selling. The need of selling might arise at any future time,'as well after the deaths of the original trustees as during their lives. The grantors provided for other trustees to succeed the original ones, and it is reasonable to believe that they intended the successors to act for the good of the society when its good required a sale. To provide for the appointment of trustees who would be unable to do an essential part of the duties, for the doing of which the trust was created, would be very improvident, and that the grantors so intended is very improbable. We find nothing in the language of the trust provision to indicate .that a personal discretion was" given to the original trustees which was not also given to their successors. The fourth reason of appeal is insufficient. The fifth reason is that the court erred in holding that the power to fill vacancies did not cease to exist upon the death of the original trustees. This reason involves either one or both of two claims. The first is *473 that the power to fill vacancies was given by the deed only to the original trustees, so that their successors had no power to fill vacancies. The successors appointed by the Court of Probate made no attempt to fill vacancies, and whether they, or any other successors, could, under the trust deed, fill vacancies, was not decided by the Superior Court, and is an irrelevant question. The second claim possible under this reason is that no court has power to fill vacancies. This claim conflicts with the rule that a trust will not be allowed to fail for want of a trustee to administer it. Dailey v. New Haven, 60 Conn. 314, 22 Atl. 945. The fifth reason of appeal is insufficient. The sixth reason of appeal is that the court erred in holding that the Court of Probate had no jurisdiction to appoint successors to the original trustees. The seventh reason of appeal is that the court erred in holding that the Superior Court had jurisdiction to appoint trustees after the Court of Probate had assumed jurisdiction of the trust, and while one of its appointees survived. These two reasons may be considered together. The defendants claim that the Court of Probate had power to appoint successors to the original trustees under General Statutes, § 249, which existed in the same form when the Court of Probate made the appointment in 1898. This statute, omitting such clauses as are irrelevant to this case, provides as follows: “When any person shall have been appointed trustee of any estate, . . . and no provision is made by law or by the instrument under which his appointment may be derived for the contingency of his death, . . . the Court of Probate of the district within which such estate shall be, . . . may, on the happening of any such contingency, appoint some suitable person to execute such trust, taking from him a probate bond.” This statute confers no jurisdiction on the *474 Court of Probate in cases where, first, any provision is made by law for the contingency of the trustee’s death, or, second, where any provision is made by the instrument under which his appointment may be derived for the contingency of his death. In this case the Court of Probate had no jurisdiction to act, because there was a provision made by law for the contingency of the trustee’s death. This provision is found in General Statutes, § 1034, which has existed in the same form since the Revision of 1888, where it appears as § 778. This statute reads as follows: “In all cases where real estate is held by a trustee under a trust created by deed, and by reason of a change of circumstances, or in the condition of such real estate, since the creation of such trust, the execution thereof in exact accordance with the terms of such deed has or shall become impossible, or must necessarily fail to secure the objects manifestly intended by the grantor in said deed, the Superior Court in the county wherein such real estate is situated may, on the complaint of the trustee or any party beneficially interested in the trust, order the sale of said real estate, or any part thereof, and the investment of the proceeds, either in other real estate or as trust funds generally may be by law invested, for.the benefit of the party beneficially interested in such trust, in such manner as said court may deem the most proper to secure the object for which said trust was originally created, as near as may be, according to the intent of the original grantor appearing in the original deed. All parties interested in said real estate, by reason of said trust, or as reversioners, shall be made parties to any action.” This statute covers the present case. Here were trustees holding real estate under a trust created by deed. The deed required the duties thereby created to be performed by the original trustees, or by successors ap *475 pointed by the original trustees. The original trustees died without performing certain duties which might become requisite and which now require performance, i. e. to sell the land, and without appointing successors. The circumstances have thus changed since the creation of the trust, so that the execution of the trust in exact accordance with the terms of such deed is now, and had become at the time of the action of the Court of Probate, impossible. Under such circumstances, the Superior Court was by this statute authorized, on the death of the original trustees without appointing successors, to order the sale of the land, and to appoint trustees to make the sale. As the object of the statute is “to secure the object for which said trust was originally created, as near as may be, according to the intent of the original grantor appearing in the original deed,” and as the intent of the grantors was that the sale should not be made until the interests of the society required it, it would have been proper for the Superior Court, in 1898, when the Court of Probate acted, to have appointed trustees to hold the real estate until it should be determined in the manner provided by the deed that the interests of the society required a sale, and then to make a sale and conveyance. The action of the Court of Probate was unauthorized and void, and the Superior Court had jurisdiction to appoint trustees. There is no merit in the sixth and seventh reasons of appeal. The plaintiffs claim not only that provision is made by law for the contingency of the deaths of the original trustees, but also that provision is made by the trust deed for such contingency. Whether this is true depends on the meaning of the statutory language. A provision was made by the deed that the original trustees should appoint successors, but by their failure to appoint successors the provision in the deed for the *476 contingency of their death became ineffective. There is therefore a question whether “provision made by the instrument,” means provision which at the delivery of the deed appeared sufficient, or provision which, in fact, proved sufficient. It is unnecessary to decide this question. It appears from the foregoing that there is no merit in the eighth reason, which claims that trustees appointed by the Superior Court cannot exercise the power of sale created by the trust deed. As to the ninth reason of appeal, which claims error in appointing trustees under the claims for relief, such appointment is proper under the second prayer, “the appointment of a trustee to carry out and execute the purposes of said trust.” There is no error. In this opinion the other judges concurred.