Cole v. Littlefield

Shepley, C. J. — The testator bequeathed to his wife, now the female plaintiff, all his household furniture, and the homestead wherein he dwelt, during her natural life, and the entire income of his whole estate. He appointed the defendant liis trustee, and directed “ the whole of my said property, which is not hereby given absolutely to my wife, is to be held by said trustee in trust for my said wife and children, until they shall be entitled to receive the same absolutely under the terms of this will.” The will contains the following clause — “ All the residue of my property to be ascertained as near as possible, after paying my debts, I give and bequeath unto my beloved wife absolutely.” The intention of the testator is thus clearly exhibited to [444] make a distinction between that which was given absolutely to his widow, and which was not to be held by the trustee, and that which was not so given, and which was to be held by the trustee. That it was not his intention to give the income absolutely to his widow is apparent, because he includes it among the property to be held by the trustee, and directs him to pay it over to her, to invest any surplus of it, and to divide such surplus among his children ; and also because the income “ is to be appropriated to the use of my beloved wife for her own and our children’s support.” The disposition to be made of any surplus income remaining yearly, after sufficient has been appropriated to support his wife and children, is inconsistent with a bequest of the whole income to the widow absolutely as her own property. The trustee is directed to draw upon that surplus, if in any year the income should be insufficient to defray the expenses of the family. If the surplus fund should accumulate, the trustee is directed to pay to each of the testator’s children, when of age, his equal proportion of it; and to divide the surplus annually among the children after the youngest becomes of age. The construction insisted upon for the widow, that the whole annual income is bequeathed to her, as her own property absolutely, would be inconsistent with these provisions and subversive of these purposes of the testator. If any surplus of income remain, and should be invested in accordance with the directions of the will, it would by this construction be her property, and her children, when of age, would not be entitled to it; and in case of her decease, her administrator could recover the whole surplus of the trustee and deprive the children of all benefit of it. The bequest to her is however of the “ entire income of my whole estate,” and she is entitled to it in some character or capacity, which will not occasion a conflict between this and other provisions of the will. No form of words or mode of expression is necessary to create a testamentary trust. [445] Words of request or desire, or words expressive of full confidence, that the devisee will do an act, or that the testator has no doubt that the devisee will dispose of the property, in a manner named, have been considered sufficient to charge the devisee with a trust. Fonbl. c. 2, § 4, note (H); Wright v. Atkyns, 1 Tur. & Russ. 143. In the case of Pushman v. Filliter, 3 Ves. 7, the testator bequeathed to his wife all his personal estate “ desiring her to provide for my daughter Anne out of the same,” and the property was considered to be held in trust, so far as it respected the support of the daughter. In this case the bequest was not only made “ to be appropriated” “ for her own and our children’s support” but she is directed how to support and educate the children, and any surplus, that might remain after accomplishing these purposes, is to be invested by the trustee to be by him divided among the children. The intentions of the testator can only be executed by regarding the income as bequeathed to the wife in trust, to be by her appropriated, so far as needed, to her own support and to the support and education of their children, leaving any surplus remaining as a bequest to the children. The rules of law fully authorize such a construction of the language, and the intentions of the testator may be fully executed by it. It remains to consider, who is to determine the amount, which may be required or necessary for these purposes. No authority is by the will conferred upon the trustee to do it. No discretion is confided to him respecting the support of the widow, or the support and education of the children. He is protected by the receipt of the widow, as his voucher, for the amount to be paid to her from the income. He is directed to pay over to the widow “ the income from said estate as she requires.” He could not be charged as trustee with any breach of trust, should he Avholly neglect to attend to the expenditure of the income paid over to her for the purposes named. Admitting the word “ requires” to have been used in the sense of needs, the support of herself and children, and [446] their education, being confided to her, she must judge of her own and of their necessities, and she is entitled to call upon the trustee to pay to her such portion of the income, as she may from time to time determine to be necessary for those purposes. No court or tribunal is by the terms of the will authorized to interpose to determine the amount to be annually paid for those purposes. It might be essentially varied by the illness or health of herself or of the children. Nor is the widow by the will constituted the exclusive judge of the amount. She is simply placed in the position of a trustee. Every trustee is accountable to a proper tribunal for a faithful execution of the trust. The widow in this case is not without responsibility, nor the children without an adequate remedy to correct or to prevent any extravagant expenditure, or waste, or misapplication of the income. If the guardian of the children, who are entitled to any surplus, has any just cause to conclude, that the widow is conducting unfaithfully in the execution of the trust, he may cause a bill to be filed in their names, and obtain an account of the manner in which the trust has been executed ; and thus any abuse of the trust may be corrected or prevented by this Court, although it is not in this suit entitled to determine the amount to be annually paid to the widow. The decree, to which exceptions have been taken, is not wholly free from objection. It requires the trustee to pay, upon the requisition of the widow, “ the income of the estate in his hands.” This might include not only the annual income but the whole of the surplus fund. The bill does not allege that any part of the income was improperly withheld from her before the first day of January, 1850. Whatever had been carried to the surplus fund before that time, must be considered as done without objection, and therefore not to be recalled except upon a requisition made by her on account of the income of some year proving to be insufficient. There is no allegation in the bill, that the whole income has proved in any year to be insufficient. She cannot therefore be entitled to claim from that fund any thing for their support or education during the past years. [447] A decree, may be drawn and entered, that the former decree be reversed ; and that the trustee pay to the female plaintiff such portion of the annual income received for the year 1849, and for the several years since that time to the first of January, 1853, as she may require. As this suit appears to have been instituted to have the rights of the respective parties clearly ascertained, and as both parties are presented in the capacity of trustees, no costs are awarded to either, but the costs of both parties may be a proper charge upon the income. Tenney, Howard and Appleton, J. J., concurred.