McAfee v. Thomas

*356 BEAN, J. The trial court held that only the income of the property of the estate of F. M. Litchenthaler, deceased, was subject to the payment of the expenses of the care of the son George C. Litchenthaler, and rendered a decree accordingly, after allowing Thomas, the trustee, $60 for services to plaintiff in making collections and disbursements since the death of George O. Litchenthaler, and another creditor of $15, and the funeral expense of George O. Litchenthaler, $150. The questions in this case are first in regard to the authority of the trustee to expend the principal of the funds of the estate of P. M. Litchenthaler for the support of the son George O. Litchenthaler, and in regard to the compensation of George H. Thomas as trustee. An account was rendered by Thomas to the present trustees, the plaintiffs, of all the items of receipts and expenditures as trustee for George O. Litchenthaler. The correctness of the items is not questioned, except as indicated. Parents are bound to maintain their children, when poor and unable to work to maintain themselves: Section 9763, Or. L. It is clear from the provisions of the will that the testator intended to provide for the care and maintenance of his invalid son during his lifetime. The difficulty arises on account of the estimate of the income of his property. If the conditions had remained substantially as the testator contemplated them, there would have been no question as to a proper and literal execution of his will. The surrounding conditions were such that the houses were not desirable except for paying small rents. The mines did not pan out richly and it became *357 impossible for the trustee who was given “full power to manage, control and secure an income from said property in any manner he may deem proper” for the support of the son to pay for the same from the income. According to the provisions of the will, if from the mines, or any source, an income of the estate had been obtained largely in excess of the requirements for the care of the son, the surplus of such income would have gone to the plaintiffs as trustees. This indicates there was no real difference in the mind of the testator between a dollar of the principal and a dollar of the income of the funds of the estate. All the court can do is to make a substantial approximation to the scheme which the testator announced in his will, in order to carry out the real intent of the testator. See Wikle v. Woolley, 81 Ga. 106 (7 S. E. 210). We are not blazing a new trail in the matter, although the like cases are not numerous. In the case of McGill v. Young, 75 N. H. 133, 134 (71 Atl. 637), we read as follows: “Although the testator says in the clause of his will in which the provision for the support of his son appears, that the trustee shall support him out of the net income of the estate, it is highly improbable it was intended to limit the trustee to that fund and to forbid him to use the principal if at any time the income should be insufficient for the purpose.” * * It will be noticed that the testator did not devise and bequeath all of his property to the plaintiff trustees but devised and bequeathed his property “subject to said life estate of- my son.” Taking the whole instrument together, although the testator directs the support of his son from the income, it is not probable that he intended to limit the trustee to *358 that fund and forbid him to use the principal, if at any time the income was insufficient for the purpose. On the other hand, an intent to care for the son, as he was unable to care for himself, is indicated by the will. There was, however, a limitation contained in the codicil to the will which affects the property devised and bequeathed to the plaintiff trustees, which restriction was to take effect upon the death of the son. The second clause of the codicil provides “the said trustees shall not sell or mortgage any of my real or personal property in the City of Portland, Oregon.” There is no such restriction found in the will as to the authority of George H. Thomas trustee for George C. Litchenthaler. In endeavoring to construe a will so as to ascertain the intention of the testator, the courts will, as far as possible, put themselves in the position of the testator by taking into consideration the circumstances surrounding him at the time of the execution of the will. The court should consider the condition of his family and estate, his affection for the legatees, his social relations, etc.: 30 Am. & Eng. Ency. of Law, p. 666. Where the conditions of the estate changed from what the testator had in contemplation, and the income was no longer sufficient to care for the purposes designated in the trust, the court will so'change the terms of the will as to effect as nearly as possible the intention of the testator: 30 Am. & Eng. Ency. of Law (2 ed.), p. 667. In cases of extreme urgency the court will allow maintenance for the infant out of the capital fund, even when inconsistent with the disposition made by the testator: Woerner, Am. Law of Adm. (3 ed.), pp. 1581, 1582. *359 As to the compensation of trustee, as a general principle trustees are entitled to a reasonable compensation for their time, trouble and shill in managing the fund usually payable out of the income, but in many cases it is payable out of the principal, the matter being more or less in the discretion of the court: 2 Perry on Trusts, § 918; 26 R. C. L. 1392; 28 Am. & Eng. Ency. of Law (2 ed.), p. 1014. In the case at bar the testimony indicates that it was reasonably worth five or six dollars per month for caring for the real property, collecting rents, etc., but the real estate has been turned over by Thomas to the plaintiffs, who are the present trustees and the title thereto should not be encumbered with the compensation of the trustee. The defendant should have made an application to the court for a construction of the will and obtained permission to expend the principal in caring for the ward before disbursing the funds. George H. Thomas,, the trustee, will therefore be allowed a small commission for his services, amounting to the balance of cash on hand, $384.77, and the account of Thomas as trustee will be squared and approved. The decree of the court will be changed accordingly. Modified. Burnett, O. J., and Brown and Belt, JJ., concur.