Kellett v. Sumner

OPINION OF THE COURT BY FREAR, C.J. (Perry, J., dissenting.) This is in form a bill for the discharge of a trustee and' the appointment of a successor in the trust, but the substantial issue is between certain of the defendants as to whether the trust.has terminated or not. The suit was begun by the Et. Eev. Gulstan E. Eopert, Bishop of Panopolis, as trustee under a deed executed by the defendant Sumner, but during the hearing, the Bishop being, as was supposed, on his dying bed, the Circuit Judge, with the consent of all parties and upon the agreement that the Bishop’s account, showing a balance of $48,025, was correct, made a decree, accepting the Bishop’s resignation and discharging him from the trust, and a further decree appointing P. D. Iiellett, Jr., in his place, and expressly authorizing the latter to go on with the suit as if he were the original plaintiff, though no formal amendment appears to have been made substituting him as-the party plaintiff. The Judge ordered also, with the consent of all the parties, that. — 78 — tbe amount above mentioned, which was then on deposit with the defendants, Bishop & Co., bankers, be paid into court, which was done. The defendant Sumner contended that the trust was terminated and that he Avas entitled to the $48,025, in which contention he was supported by his sister Maria S. Davis, Avho originally Avas a defendant but whose name was during the progress of the case stricken from the record, and her son, Wally Davis, aa-1io Avas a defendant to the original bill, but Ardióse name Avas omitted from the amended bill, and opposed by his nepheAvs, the defendants, the three Ellises, including Mrs. Buffandeau {nee Ellis). Besides the prayers in the bill for the acceptance of the trustee’s resignation, his discharge, the appointment of a successor and the payment of the money to such successor, there Avere prayers for other and further relief generally and “for such other and further disposition of the sum of $48,025 as to the court may seem just and equitable,” and John K. Sumner'in his ansAver prayed not only for the discharge of the trustee, but that the trust deed be cancelled and declared no longer in force, and that the sum in question be declared his absolute property and that it be ordered paid over to him. The Circuit Judge finally decreed that the deed be and Avas cancelled and annulled and the trust terminated, that the money be paid to Sumner, that the new trustee, Kellett, convey to him all property not already disposed of under the trust, and deliver to him all documents, &c., and thereupon be discharged as trustee. The circumstances Avere, briefly, these: On February 7, 1895, Sumner made a lease, afterwards assigned to the Oahu Railway and Land Company, of certain land, bordering on Honolulu harbor, for 99 years at an annual rental of $5,500, at the same time giving in the lease an option to purchase the land at any time during the term of the lease for $100,000. A small portion of the land Avas reseiwed for 25 years. Sumner' Avas supposed to haA^e title to only one-lralf of the land, and his title to that Avas disputed by the government. On February 19, 3 895, Maria S. Davis filed a suit, as next friend of — 79 — Sumner, who was absent at bis borne in Tahiti, to set aside a power of attorney given by Sumner to one Crandall, and to have a receiver appointed to take charge of bis, Sumner’s, property in these islands, alleging that he, Sumner, was failing in mind and unable intelligently to transact business. The Circuit Judge granted the relief sought, but, upon the return of Sumner from Tahiti, the Supreme Court granted a writ of prohibition' to stay further proceedings in the receivership matter. Meanwhile, November 13, 1897, Mrs. Davis brought proceedings to. have Sumner put under guardianship as an insane person, which was done. Pending the appeal from the order of guardianship, Mrs. Davis brought another suit, as nest friend of Sumner, for the cancellation of certain conveyances made by Sumner after the discharge of the receiver. The conveyances were set aside as having been obtained without consideration and by fraud and undue influence. Also pending the appeal in the guardianship matter, Sumner executed the trust deed in question, on the understanding, as alleged in the answer of the Ellises (including Mrs. Buff an-dean) that the Supreme Court would thereupon with the consent of all enter a pro forma decree vacating the decree of the Circuit Judge declaring him, Sumner, non compos mentis, Sumner then being, as also alleged in said answer, “greatly harassed, annoyed and distressed by the several suits and proceedings hereinbefore referred to and being advanced in years and greatly broken by bodily infirmities and desiring to end his remaining years in peace and without strife and friction with those who were bound to him by ties of blood and to avoid the humiliation, mortification and anguish of having the said order declaring him to be an insane person affirmed by the Supreme Court.” Thereafter the Supreme Court entered a decree setting forth a written stipulation to the effect that the petitioner, Mrs. Davis, did not desire to press the proceedings further and that she consented that the decree appealed from be vacated and the matter discontinued, and decreeing accordingly, but rvithout prejudice to any one not a party thereto. Whether — 80 — the fact that the trust deed bad been executed by Stunner was-brought to the attention of the court does not appear. The court apparently vacated the decree below on the theory that the parties, particularly the petitioner, desired to discontinue and that was done without prejudice to others not parties. In July, 1902, the Oahu Railway and land Company decided to-exercise its option to purchase the leased property for $100,000, and brought suit to compel a conveyance after a demand for the same had been refused, whereupon, on September 4, 1902, Mrs. Davis again instituted proceedings to have a guardian appointed over Sumner as an insane person, and also, as next friend of Sumner, a suit to cancel the lease and option. On September 24, 1902, the Circuit Judge dismissed the last mentioned suit on the ground that Sumner was sane, and on October 13, 1902, the Circuit Judge, on motion of the petitioner, Mrs. Davis, dismissed the petition for the appointment of a guardian and decreed Sumner to be sane. On the same-day the Bishop, as trustee, and Sumner, Mrs. Davis, her son Wally, the two Ellises, Mrs. Buffandeau and her husband, executed a deed of the leased property, and also of the reserved portion, to the Oahu Railway and Land Company for $110,000, and on the next day the- railway company discontinued its suit for specific performance. Of this sum, $10,000 was divided among the attorneys of the various parties other than the-Bishop, without regard to whether they had served Sumner- or his foes, $10,000 was paid to the Bishop for the Roman Catholic Church, and $10,000 to each of the Ellises (including-Mrs. Buffandeau) and Mrs. Davis, and $1,000 to one Cathcart for certain alleged services, leaving the sum of $915 unaccounted for in the present case, and the balance now in dispute, $48,025, in -the hands of the Bishop, who a few days later, October 21, paid it over to Sumner, who in turn deposited it in the bank of the defendants Bishop and Company, by whom, as stated above, it was pa.id into court. At the same time the Bishop returned to Sumner a will which was referred to in the deed; and Sumner at once cancelled this and afterwards — 81 — burned it. The deed itself was retained by tbe Bishop to await the preparation of some other document by Sumner’s attorney cancelling the deed, &c. The following day the Ellises notified the bankers not to pay out the money to anyone other than the Bishop, and five days later this suit was instituted. The foregoing is a bare outline. It is unnecessary to go at length into the details as they appear in the voluminous evidence or as may be read between the lines, this latter being the part to which counsel particularly addressed themselves in their oral arguments, if not in their briefs. The question is whether the trust has terminated, and it will therefore be necessary to set forth the relevant parts of the deed and will creating the trust. The deed (from Sumner to the Bishop and his successors in office) describes Sumner as. “a resident of Tahiti, at present temporarily in Honolulu” and recites: “Whereas, the party of the first part desiring that his property and interests in the Hawaiian Islands shall be in charge of some competent and disinterested person, and the party of the second part has kindly agreed to accept the trust and confidence in him hereinafter expressed.” The conveyance is expressed to be “in consideration of the premises and in order to effectuate such desire and agreement”, and is in trust “to collect all the rents and profits thereof and to pay thereout all taxes and other expenses incurred in respect of managing or attending to the same, together with any expenses incurred by the party of the second part for legal advice or services concerning the same or the management thereof, and to pay the balance thereof from time to time as received by the party, of the second part to the party of the first part during his. lifetime, and at his death to grant and convey said property and pay any of such unapplied income to such uses and purposes and to such persons as the party of the first part shall by his last Will and Testament, made and executed on the lYth day of September, A. D. 1898, name and appoint, and in default of such appointment, to such persons as shall by — 82 — the law of Hawaii be entitled in cases of persons dying intestate ; “And in further trust and with power hereby expressly granted to the Trustee to make such leases and agreements of lease of the said property or any part or parcel thereof, upon such terms and conditions and for such rentals as the Trustee shall think proper, and to collect and give receipts for the rentals, and to collect all moneys now or hereafter due, payable and coming to the party of the first part within the Hawaiian Islands and to apply the same as above directed in respect of the income of said property. “'And also, in trust and with power hereby expressly granted to the Trustee to adjust, compromise and settle all claims of every description now or hereafter made against the party of the first part, in such manner as the Trustee shall think fit and to bring such actions and proceedings in law or equity in respect of said property or any part thereof, or of any other rights or claims of the party of the first part, and to conduct the same to final judgment and execution or adjust, compromise and settle the same as the Trustee shall think fit; “And in all respects to conduct and manage the said property and the matters -hereinabove mentioned as fully and effectually to all intents and purposes as the party of the first part could do.” The trustee accepted the trust. The will, referred to in the deed as executed the same day, was destroyed, as stated above, but its contents were proved in part as follows: In substance one-fourth of all the property, except the life interest, to the Bishop for the use of the church and the support of Saint Louis College, and then “All the rest, residue and remainder of my property, I give, devise and bequeath to the Bishop of the Homan Catholic Church in Honolulu, in trust to manage the said property and collect the income from the same, and pay the income thereof in equal moieties to William Sumner Ellis, John Sumner Ellis and Victoria Sumner Ellis, the children of my dear niece, Nancy Sumner Ellis, deceased, during their lives and the life of the — 83 — survivor of them; but if any of them become bankrupt or insolvent, the trustee shall during the life of each beneficiary apply the annual income in and to the maintenance, clothing, lodging and support of any of them, or of the wife or children of any of them as the thustee shall, at his discretion, -think proper. In case at my death my said grand-nephews and grandniece shall have died without leaving lawful issue or wife or husband then surviving, the shares taken under this will shall descend to and become the property of the survivors, and upon the death of the survivors of the said children of Nancy Sumner Ellis, the property shall revert and become the property in fee simple of the nearest blood relative of John K. Sumner living at the time of the death of the survivors of them, or in ease of more than one relative of the same degree of relationship to them in equal moieties, in order that the property may remain in the Sumner family for all time.” The property and the proceeds thereof now in question were part of the property covered by these items of the will. Several contentions are made to show that the trust has terminated. The suggestion is made that by the terms of the trust deed itself this money should be paid to Sumner, for all the income is to be paid to him during his life and the deed provides further that the trustee is “to collect all moneys now or hereafter due, payable, and coming to the party of the first part within the Hawaiian Islands and to apply the same as above directed in respect of the income.” In view of our conclusion on another point, no opinion need be expressed upon this. Another contention, much urged, is that the trust could be terminated by consent of all parties interested and was in fact so terminated when the $110,000 was distributed as above set forth. The proposition of law that the trust may be terminated by the consent of all interested seems to be conceded, but it is contended that such consent was not given in this case. Whether the Ellises, the Davises and the Bishop so consented in fact, we need not inquire at this point, nor need we say whether the — 84 — Ellises could so consent as matter of law in view of the insolvency clause in the will. It is clear that by the terms of the trust, as set forth in the latter part oi tne win, ¡Sumners nearest blood relatives living at an uncertain future time had contingent interests and they are yet undetermined, and so cannot consent. They may be children of Sumner, yet unborn. In order to justify a termination of the trust by consent, all interested must consent. Brandenburg v. Thorndike, 139 Mass. 102; Cartwright v. Cartwright, 10 Haw. 403; Perry, Trusts, . Secs. 104, 920. But, it is argued that such nearest blood relatives are only heirs of Sumner and that when a devise is made to heirs, the latter take by descent and not by devise, and hence that this is merely a case of a reversion to Sumner, and that therefore the consent of such relatives is not required. A sufficient answer to this is that “nearest blood relatives” are not the same as heirs. They are not the same as next of kin according to the statute of distributions nor the same as relatives. Even “nearest relatives” would not, much less would “nearest blood relatives,” include a wife, — who would be included under our statute among “heirs.” Haraden v. Larrabee, 113 Mass. 430; Hawkins, Wills, 97, 104; Underhill, Wills, Secs. 590, 591. A third contention, which in our opinion is sound, is that the trust was revocable by Sumner under the circumstances without the consent of the other beneficiaries. The Ellises contend that the trust could not be terminated either by the consent of all interested who are now in being and sui juris or by Sumner himself, although they 'were ready enough to participate in its spoliation to the extent of $62,000. If the trust is not terminable, they and all others who have shared in the trust fund should be required to restore it. No one has offered to do this, and it is doubtful how much of the $62,000 could be obtained on execution in case the trust should be held irrevocable, even if judgment should be obtained by the new trustee against the several participants. How far, in case the trust' were irrevocable, the trustee or his representa85 lives would be liable for the $62,000 paid out in technical, though unintentional, breach of the trust, we need not say. Whether any of the sums distributed could be recovered by Sumner as having been obtained’by fraud or undue influence, in case the trust is held revocable, we need not say. It doubtless would have been much better for Sumner, considering his infirmities and the activity and avarice of his relatives, if the trust could have been kept intact, for he would then have been assured a good income for the rest of his life, but, now that the greater portion of the fund is gone, and the rest would soon go to others under the trust, it may be a question whether it would be better for him to keep the balance tied up, giving him the income only, or to let him have it and get what enjoyment he can from what he is not cheated out of during the brief remainder of his life. While this is the greater portion of his property, he apparently has sufficient in Tahiti to maintain himself. But the court cannot continue or terminate the trust merely according to what may seem to be for his best interests, if under the circumstances he has a right to revoke it. Courts have swayed somewhat from time to time and differed from each other in their opinions as to when a trust of this nature is revocable by the grantor. At times the view seems to have been taken that the mere omission of a clause of revocation or the mere neglect of counsel to call the attention of the grantor to the advisability of inserting such a clause, is sufficient to show mistake or undue influence and justify revocation, or will at least cast the burden on any one seeking to sustain the trust to prove that it was made deliberately and intelligently with an intention .that it should be irrevocable. But the better view at the present time seems to be that those are only circumstances to be taken into consideration with other circumstances and that the real question is whether the grantor intelligently and freely created the trust with the intention that it should not be revocable. Instructive series of cases upon this subject are found in England and Pennsylvania, the present view being set forth in the recent cases of Hall v. — 86 — Hall, L. R. 8 Ch. App. 430, (overruling L. R. 14 Eq. Cas. 365) and Kraft v. Neuffer, 202 Pa. St. 558. The following are other cases of this general character in those jurisdictions. Fredericks Appeal, 52 Pa. St. 338; Russell’s Appeal, 75 Pa. St. 269 ; Rick’s Appeal, 105 Pa. St. 528; Bristor v. Tasker, 135 Pa. St. 110; Reidy v. Small, 154 Pa. St. 505; Chestnut St. Nat. Bank v. Fid. Ins. Co., 186 Pa. St. 333; Wilson v. Anderson, 186 Pa. St. 531; Prideaux v. Lonsdale, 1 De G., J., & Sm. 433; Toker v. Toker, 3 De G., J., & Sm. 487; Coutts v. Acworth, L. R. 8 Eq. Cas. 558; Wallaston v. Tribe, L. R. 9 Eq. Cas. 44; Everitt v. Everitt, L. R. 10 Eq. Cas. 405; James v. Couchman, L. R. 29 Ch. Div. 212. See also Ewing v. Wilson, 132 Ind. 223; Garnsley v. Mundy, 24 N. J. Eq. 243; Aylsworth v. Whitcomb, 12 R. I. 298; Underhill, Trusts, 102. If one intelligently and freely creates a trust of this character, although without consideration and although he is to retain the benefit himself for life, he cannot as a rule revoke it as against remaindermen. But under special circumstances, as shown by the cases above cited, such a trust is revocable, and in our opinion, such special circumstances exist in this case. Indeed, this would seem to be a particularly strong case as compared with many of the cases cited above. We need not consider whether the deed, by referring to a will already made, though on the same day, makes it a part of itself, so as to prevent a defeat of the trust by a revocation of will afterwards; or whether the deed itself can be-revoked on the theory that, though in form a deed, it was really merely testamentary in character; or whether the failure of the trust to the extent of more than half the trust fund and the grantor’s deprivation of corresponding expected benefits, through undue influence or otherwise, might affect the question; or how far the trust was improvident in locking up for the rest of his life the greater part of the grantor’s property or in not leaving the way open to the grantor to make provision for the to him unforeseen and unsuggested contingency of his marrying again and having children; nor need we consider whether the evi87 deuce or tlie pleadings would permit a cancellation of tlie deed on tbe ground of insanity, fraud or undue influence at its inception. It is undisputed that no clause of revocation was inserted, and there is no evidence that the advisability of inserting such a clause was called to Sumner’s attention in any way. These are generally regarded as important facts in connection with other facts in cases of this kind. In some instances such facts are shown by the very nature of the trust itself to be comparatively immaterial, as where the trust is created for the express purpose of protecting the grantor from his own intemperate and spendthrift habits, or where a woman in contemplation of marriage puts her property in trust for the express purpose of preventing her husband from getting control of it, for in such cases if the trust were revocable, its purposes could be defeated at any time, in the one case by the desires of the intemperate man or spendthrift overcoming him and in the other by the husband’s influence on the wife, and hence in such cases there is good ground to believe that the trust is intended to be irrevocable, at least so long as the reasons for it continue. But, where, as here, the creation of the trust is purely voluntary, without consideration, and for the grantor’s especial convenience and by a weak-minded aged man acting under much pressure, the case is different. If anything is clear in this case, it is that Sumner has never conceded for a moment that he was incompetent to manage his own property, although he acknowledges certain infirmities, such as defectiveness of eyesight and partial loss of memory, and even that -lie needs advice at times. If there is one thing that he has dreaded, it has been the imputation of insanity. No one has so much as sriggested that he is intemperate or a spendthrift. It was not his thought in executing the deed to protect himself from himself, or to provide for his relatives. His need of protection because of mental weakness may have weighed strongly with his sister and his attorneys at the time — 88 — as a justification for urging or advising him to ex'ecute tbe deed, but he apparently took a different view of the situation. If we look to the deed itself, we find in it much that, especially to a man like Sumner, aged and infirm and unfamiliar with law, would indicate that it was of a temporary nature and for his own convenience. It describes him as a resident of Tahiti, temporarily here; it recites that he desires his property and interests here to be in charge of some competent person and that the Bishop had kindly consented to act, and that the deed was made to effectuate such desire; it then proceeds, in declaring the trusts, to enumerate powers found in ordinary powers of attorney, ending with the provision that the trustee is “to conduct and manage the said property and the matters hereinabove mentioned as fully and effectually to all intents and purposes as the party of the first part could do.” It reserves to him the entire income for life, and then directs that the property shall go after his death to such persons as he shall by his will made the same day appoint, and in default of such appointment, to his heirs. It does not appear whether the will was made before, at the same time as, or after the deed, though we presume it .was part of the same transaction, but, especially if the deed and will were parts of the same transaction, why were not all the trusts inserted in the deed, if they were intended to be irrevocable ? A man like Sumner. would naturally suppose the will to be revocable, and the language of the deed also would seem to indicate that to a man like him. Further, the trustee was given no power to sell, and no power to invest the proceeds although the option for the purchase of the property had already been given. It was not at all unlikely that the option would be exercised at any time and the property covered by the deed of trust converted into money. If it were contemplated that the trust was irrevocable, it would seem that ordinary prudence would have called for the insertion of a provision in regard to the investment of the proceeds of the sale. If the deed was executed for the grantor’s own con89 venienee, tbis goes far towards furnishing sufficient ground, as shown by the cases, for holding that it is revocable. If we look outside of the deed, there is little direct light, so far as the circumstances at the time of its execution are concerned. But inferences may be made. If, as suggested by counsel for the Ellises, Sumner was then, as found by the Circuit Judge at the time, non compos mentis, and has not since been restored sufficiently to ratify the deed, it ought not to stand in any event. If, as the Ellises allege in their answer, Sumner executed the deed because he was harassed, annoyed and distressed by the litigation in which his relatives were involving him, and in order to end the strife and friction with them, and avoid the humiliation, mortification and anguish of having the decree that he was insane affirmed by the Supreme Court, in other words, if, as the argument seems to be, he was ■ forced or blackmailed into executing the deed for the purpose of tying up his property for his relatives, this also is one of the strongest reasons, as shown by the cases, for holding the deed revocable. There is no doubt that Sumner was greatly annoyed by that litigation and that he deeply felt the humiliation of being declared insane. He was then 76 or 18 years old and at least somewhat weak-minded and easily influenced, and, considering the state of his mind in view of the litigation and the actions and conduct of his relatives, it looks very much as if he was practically forced into executing the deed, and these circumstances afford strong additional ground for holding the deed revocable. The evidence shows further, so far as it shows anything upon this point, that Sumner himself never regarded the deed as irrevocable. His actions have throughout harmonized with the theory that he believed it revocable. And there is much reason to believe that all the others directly interested, as well as their attorneys at the time of the distribution, thought so too. The Bishop, the trustee, apparently thought so. He not only paid out the greater portion of the trust fund to others on Sumner’s orders but he paid the balance of the money to Sum — 90 — ner and delivered the will to be canceled and was ready to' cancel the deed, until others interfered. He also accepted $10,-000 from the trust fund as a voluntary gift from Sumner for the Church, althong’h he would have been entitled, for the Church and Saint Louis College, in a few years, to one-fourth of the whole property under the trust. ILis conversations with Sumner and his attorney, when he paid over the money, and with the Ellises when he tried to induce them to be satisfied with $10,000 apiece as gifts from Sumner, and the testimony of Father Valentine all go to show that he believed the trust was at an end. No appeal is taken by the trustee. Apparently the suit was brought by the Bishop out of abundant caution to' get a judicial determination in view of the fact that the Ellises had questioned the termination of the trust. The six attorneys who represented the various parties at the time of the distribution were of the same opinion, or else they were guilty of deliberately joining in the spoliation of the trust for a share of' the booty. The Davises were of that opinion, as they say themselves, and they received $10,000 of the fund, besides $5,000 for their attorneys. And, lastly, the Ellises themselves were of the same opinion, however strenuously thev may now deny it. The negotiations for the final settlement, resulting in the discontinuance of the suits, the execution of the deed to the Oahu Railway and Land Company, and the distribution of the $110,000, were somewhat protracted. It was known all along by the Ellises that Sumner needed or desired and expected a considerable sum, at least $15,000, to take back to Tahiti for the purposes of his business there. The first proposition was to allow Ur. Sumner $15,000 out of the then expected $105,-000, the attorneys $5,000, the Church $10,000 and the Ellises the remaining $15,000, the last named sum to be placed in the hands of a trustee to pay the income to the Ellises during Sumner’s life and then divide the principal among the three Ellises, giving them $25,000 each. This scheme fell through because of the objection of the Ellises’ attorneys that the trustee was not required to give a bond and that his compensaton was too — 91 — great. After that Sumner seems to have steadfastly refused' to give more than $10,000 apiece out of the expected money. This proposition seems to have been delayed for sometime in its execution through the stubbornness of William Ellis in insisting on having $15,000. But at last he yielded. The-Ellises therefore received $10,000 each, besides what was paid to their attorneys, thus not only participating in but urgently insisting on a breach or revocation of the trust, as to the greater-part of the trust fund, and then, although well knowing Sumner’s need and expectation of money for his interests in Tahiti, set up the claim that he could not have a cent but that the entire balance must be kept intact mostly for themselves. Actions speak louder than words, especially subsequent words, although prior words are not altogether wanting here to the same effect as the 'actions. It is remarkable, we may observe in passing, that, notwithstanding the large interests involved, the-length and heat of the negotiations and the number and ability of counsel, there is so little direct evidence as to the exact understanding on the final distribution of the fund. Unfortunately, owing to the Bishop’s illness, his testimony could not be obtained, the attorneys in general seem to have been studiously silent, the two Ellis boys were out of the Territory during the hearing, and the testimony of those who did testify is meager upon what was actually said in the negotiations. But it is clear what Sumner’s intention was, and what all the relatives, including the Ellises, knew it was, and what they led him to believe, and that they all knew that he gave them the several sums on the strength of that belief, and that was, that upon payment of those sums, he would be rid of them forever so far as the-balance of the fund was concerned. The Ellises contend, among other things, that they are in a different position from that of the Davises, because the latter signed an express release of all further claim to Sumner’s property, when they received the $15,000 paid to them for themselves and their attorneys, while they, the Ellises, did not sign any such release. Erom this it is argued that whatever92 may have been the understanding of the Davises, they, the Ellises, did not intend to relinquish any right to the balance •of the trust fund. But this release of the Davises was prepared at the Ellises’ request by their own attorneys and its execution was procured by those attorneys, and, so far as appears, Sumner knew nothing about it until afterwards. The Davises apparently signed it on the supposition that the Ellises were to execute similar releases, and Sumner apparently proceeded on the theory that no releases were needed from any of the parties. It may be that the Ellises did intend not to release any claim to the balance of the fund, but, if so, they kept that intention well concealed until they had procured the release by the Da-vises and had got into their hands as much of the fund as they could for the time being. Another thing relied on to show that the Ellises did not intend to release their claims to the $48,025 is that at the last meeting, when the deal was consummated, Mrs. Buffandeau’s husband asked Sumner what he was going to do with the rest of the money and that he replied that the Bishop was still his trastee and that they would get the rest of it when he died, and that thereupon one of their attorneys jumped up and said, “that is .all we want to know, children, sign the deed” (meaning the deed to the Oahu Bailway and Land Company). It is not altogether clear just what was said then. The two Buffandeaus testified 'as above. The attorney testified that the question and answer by Buffandeau and Sumner were as above, but was .silent as to whether'he, the attorney, said anything. Mr. Oath-cart testified that Sumner replied “Oh, the Bishop is still trustee.” Sumner testified that he replied, “It is none of your business; that is my business.” One thing, however, does appear, that Sumner, then from 82 to 84 years of age, with all his infirmities and burdened with his trials, was there wrestling practically alone with his relentless relatives and their attorneys, and that when he was asked the question by Buffandeau, he became angry and apparently made whatever reply he did made, in desperation. Mrs. Buffandeau herself testified that — 93 — they knew Sumner wanted to take back to Tahiti fifteen to> twenty thousand dollars. Mr. Buffandeau himself testified that he asked Sumner the question out of curiosity and good naturedly. The question, moreover, implied that Sumner could do as he pleased with the money. If it was still subject- to the trust, why ask what Sumner was intending to do with it ? The-at-torney could hardly have advised as he is said to have done on the theory that that answer of Sumner’s was to settle the question whether the balance of the money was to remain subject to the trust as matter of law. He could have so advised, if he did, only on the theory that Sumner was to continue the trust as a matter of his own intention at that time. It is surprising indeed that the Ellises are compelled to place so much reliance upon such a scrap of evidence as this from among all that was said and done during weeks of active negotiations — a mere off-hand reply of an aged man, in desperation to a question of idle curiosity askech by the husband of one of the parties. It remains that the Ellises thought the tnxst sufficiently revocable to justify their acceptance of $35,000 of the fund, knowing that Sumner expected by yielding to that extent to their impor-tunities to be free as to the rest so far as they were concerned. This, indeed, migh operate as an estoppel so far as the Ellises are concerned. Under circumstances like these, courts hold that trusts of this nature may be revoked. It is unnecessary to say how far the case should be classed under any one head of equity juris--diction — such as mistake, fraud or undue influence. It looks very much as if it presented a compound of these and perhaps other ingredients, though, perhaps, not all in equal parts. It is further contended that the decree cannot be affirmed in any event because of the want of necessary parties, to wit, the wives and children of the Ellises and the Saint Louis College. These, it is contended, are beneficiaries, with either vested or contingent interests, under the trust, and as such are necessary parties. This argument is based on the theory that the will must be given effect as a part of the deed even if it should — 94 — never take effect as a will, for there can be no interest under it as a will until the death of the testator. Let us assume that to be the case. The point, as to parties, is not raised by the pleadings and apparently was not suggested in the court below. It is, moreover, purely technical, for these interests, if they existed, were., so far as appears, fully represented in fact by others who were parties, namely, the interests of the wives and children by their husbands and fathers who were parties and who contested the case as vigorously as they could, and the Saint Louis College by the Bishop, who, there is reason to be-live, was the legal representative and had full control of the College, and who was not only plaintiff as trustee for all but was defendant as legatee trustee for the College. So far as the College is concerned little need be said in addition to what has already been said. It does not appear just what the exact lan.•guage of the will was in regard to the College, nor does it appear that the College was not fully represented. Even if the Bishop did not sufficiently represent it as trustee for all or as “trustee devisee or legatee for the College, still there is reason ■to suppose that the Bishop was the only one who could represent it as ultimate cestui que trust. Under the circumstances the ■ decree below should not be reversed on the bare possibility that some one else might in law be entitled to appear for it. Now, as to the wives and children. There are, perhaps, a number of reasons why the decree should not be reversed, at least in toto, because these persons were not made parties. Several of these reasons will be stated. In the first place, conceding that the bill has technically some objects for which all persons interested should be made parties or at least be represented, yet most of these other matters were settled by decrees not now appealed from and are not in dispute and have turned •out to be of a somewhat incidental nature. The gist of the suit was whether Sumner should be required to pay the money back to the trustee. The suit was brought by the trustee, not by Sumner. The latter had the money. The obligation was on .the trustee and others contending the same way not only to see — 95 — that all necessary parties were joined but to show that it was Sumner’s duty to pay over the money. If they failed in those respects, the money naturally remains with Sumner. Consequently, so far at least as the money is concerned, there is no reason for reversing the decree appealed from. But there would be nothing, on this view, to prevent further proceedings by the wives and children to subject the money again to the trust. They would not be concluded. Secondly, it is contended that, so far at least as the money is concerned, the trustee as plaintiff could maintain the suit against Stunner without joining any others — even the Ellises themselves. For, in a suit whether by or against the trustee of an active trust, to recover •a portion of an alleged trust fund the relations between the trustee and the beneficiaries may not be involved. In such case the trustee represents all the cestuis que trust, and a decree for or 'against the former binds the latter in the absence of fraud or collusion. See Kerrison v. Stewart, 93 U. S. 159; Manson v. Duncanson, 166 U. S. 533; Stevens v. Bosch, 54 N. J. Eq. 59; Clemens v. Heckscher, 185 Pa. St. 476; Belding Sav. Bank v. Moore, 118 Mich. 150; Cheatham v. Rowland, 92 N. C. 340. But there is much to indicate that under the circumstances of this case the relations between the trustee and beneficiaries were involved and so we do not rely on this point. Under this theory also it might be contended with some force that there are other matters covered by the decree, aside from the right to the money, in respect of which the trustee did not sufficiently represent the beneficiaries. Thirdly, are not the interests, if there are any, of the wives and children, too uncertain and remote to require them to be made parties ? The •only clause, if any, under which they could claim in the deed, apart from the will, is that which directs the trustee to convey the property, on the death of the grantor and in default of appointment in the will, to those entitled by Hawaiian law in cases of persons dying intestate. But this is altogether too uncertain. Besides the uncertainty as to default of appointment, there is the -uncertainty as to who will be the heirs. — 96 — They cannot be ascertained until the death of the testator. In the will itself there are four clauses that may be considered. It is clear, for the reason just mentioned in connection with the deed, that the interest, if any, under the last clause of the will, which directs that the property be ultimately conveyed to Sumner’s nearest blood relative or relatives would be too remote and uncertain. Such would be the case also under the first clause relating to the Ellises, which directs that the income be paid to them severally for the life of the survivor, for in that case the wives and children, if they would take rt all during the life of the survivor or survivors after the death of one or two, would take by descent from the husband or father and not by purchase under the deed or will. So under che clause relating to bankruptcy or insolvency, they would take no interest whatever. The trustee is not required by that clause to pay anything to the wives or children. He is merely given discretion in case of the bankruptcy or insolvency of any one of the Ellises to apply the income to the support of any of them or of the wife or children of any of them. See Booraem v. Wells, 19 N. J. Eq. 87. The only remaining clause is that which directs that in case at the death of the testator the three Ellises (probably meaning one or two of them) shall have died without leaving lawful issue or wife or husband then surviving, the shares, &c., shall go the survivors, &c. This is the clause that was at first relied on, the argument being that the wives and children were given estates by implication, but the chief reliance now seems to be upon the bankruptcy clause which we have just disposed of. If any interest is given by this clause, it is a contingent interest only and that, too, one depending on several contingencies — contingencies not only of the uncertain collateral event of the Ellises dying before the testator but of the uncertainty as to the existence or ascertainment of what persons, if any, will take. Will there be any such wiv.^s or children at the time in question. If wives, will they be the ones now living? If children, who will be the survivors? We assume that there are such wives and children at the present time. — 97 — Are not these interests, if any, too remote and uncertain? See Temple v. Scott, 143 Ill. 290. But, lastly, in our opinion, the wives and children did not under this clause take any interests however uncertain. If they took an interest at all, it was by implication- Estates by implication are not favored. If the will is regarded as part of the deed for the purposes of construction as well as for the purpose of creating interests before the death of the testator, it cannot, of course, be construed as giving an estate by implication under the clause in question. But let us look at it as a will for the purposes of construction in this respect. Courts gu much further in stretching the language of a will than of a deed in order to give effect to the intention. It is well settled that a devise or bequest to A indefinitely or in fee with a gift over in the event of A’s dying without leaving children surviving, gives nothing to the children. The same is true if the prior gift is to A for life only. In the first case the whole estate is given to A and he has the means of providing for his children. In the second case, there would seem to be much reason to suppose that the children, if any, were intended to take after A, but that is not a necessary implication, 'and so courts take the view that the children are merely mentioned as part of the description of the condition on which the gift over is to take effect, and that speculation as to the intention of the testator cannot be indulged in to such an extent as to give the children an estate. Si voluit, non dixit. 1 Jarm, Wills, 563; 1 Underhill,, Wills, Sec. 468; Scale v. Rawlins, (1892) App. Cas. 342; 45 Ch. Div. 299; Greene v. Ward, 1 Russ. 262. The same is held also when, as here, the alleged gift by implication would be not by way of remainder but by way of substitution, that is, when the contemplated death of the first taker is in the testator’s lifetime. Cooper v. Pitcher, 4 Hare 485; Lee v. Busk, 2 D. M. & G. 810. It is true that, so strong is the implication in favor of the children when the prior estate is limited for life, courts in such cases sometimes seize upon comparatively slight indications in other parts of the will to hold that the children were intended to take. But — 98 — ."here, aside from the fact that each prior estate is not for the life of the taker but for the life of the survivor of three takers, -the only other clause of the will which throws light on the indention of the testator as to the wives and children weakens the view that they were intended to take by implication. That is .the bankruptcy clause. That, so far as it goes, shows merely that the Ellises themselves were intended to provide for their 'wives and children, and that, even if they failed to do that, the wives and children were to be provided for by the trustee in his -discretion and not by giving the wives and children an estate. .Moreover, that clause was to apply only in the event of the -Ellises surviving the testator while the clause in question was to apply only in the event of their not surviving the testator. Again, that clause relates to wives and children -while this relates to wives, husband and lawful issue. Further, what estate, if any, is given to the husband, wife or issue by implication ? Is it an estate for the life of the survivor of the Ellises ? That is all it could be in view of other provisions of the will, but if there is any estate by implication from this clause taken by itself it is either an estate for their own respective lives or .an absolute estate. And in what proportions or how would a wife or husband and several children take ? Would a wife and .several children of one of the Ellises take equally as tenants in common for the life of the surviving Ellis ? And, again, if -all the Ellises should die before the testator (as the first part -of this provision taken literally and by itself seems to contemplate), it is clear that the waves, husband or children could not take at all, even though there would be as much reason for providing for them in that event as in the event of only one or two of the Ellises dying before the testator. There is much room for speculation as to what the testator intended. This is increased by the fact that the will is carelessly drawn and does not clearly express the real intention in several respects. No doubt there is much reason to believe that the testator meant that the wives, husband and children should be provided for in ..some way in the event named, but that is not a necessary im — 99 — plication. Still less is it a necessary inference that he meant to give them definite estates. If he did mean that, he did not say it. And on the authorities we must hold that they took nothing. The present tendency seems to be to limit rather than extend the doctrine of estates by implication. T. McCants Stewart for the Trustee. J. A. Magoon, J. Lightfoot and Geo. A. Davis for Sumner. Humphreys, Thompson & Watson for the Ellises and Mrs. Buffandeau. The appeals are dismissed, the decree appealed from affirmed, and the case is remanded to the Circuit Judge for such further proceedings as may be proper consistent with this opinion.