Scott v. Rand

Colt, J. It is contended in support of the demurrer that the trust created by the indenture signed by the defendants, so far as it relates to the plaintiff, terminated with her release from guardianship. The terms of the trust must be ascertained by applying to this instrument the usual rules of interpretation, and we are of opinion that the plaintiff is entitled to the benefit of the provision in her behalf, without reference to the continuance of the guardianship under which she had been placed. The indenture expressly provides that the trust shall terminate upon the death of Mrs. Scott during the life of her husband, or upon the death of Scott during the life of his wife, or upon the continuance for two years of legal proceedings against Scott, instituted by the plaintiff, “ her guardian for the time being, or any person authorized by her or acting in her behalf,” on account of certain real estate sold by him in which the wife’s homestead and right of dower had been released by a former guardian. No other termination is provided for, and no intention to control these provisions can be implied from the clause requiring the trustee to pay to the guardian of the plaintiff for the time being, the income secured to her, and making the guardian’s receipt a full acquittance to the trustee for such payment. The clause has reference to the fact that the plaintiff was then under guardianship as an insane person, and to a present incapacity which made it necessary that all payments should be made to her guardian. All the other provisions and recitals are consistent with this interpretation. It is declared to be the intention to secure to the plaintiff in any event of fortune a comfortable support and maintenance during the lifetime of the husband. Full directions are given as to the disposition of the fund upon the death of either, or in the event of the litigation named. The clause m reference to such litigation plainly implies that the plaintiff, although released from guardianship, shall continue to enjoy the benefits of the trust unless legal proceedings have already been commenced by her guardian, or are afterwards commenced by her. The principal causes of demurrer are thus disposed of. [112] As it appears by the allegation in the bill that the trustee has wrongfully paid over the entire fund to Scott, it is unnecessary to allege a balance of income remaining in his hands after payment of taxes and expenses incurred in the management of the fund. It is not necessary to allege that the conduct of the trustee amounted to “wilful negligence or default,” where the act charged appears to have been intentional, and to have been in violation of the terms of the trust. Demurrer overruled.