Witter v. Dudley

A. J. WALKER, C. J. The decree of Chancellor Crenshaw first creates a separate estate for life in the appellant, then appoints a trustee for her, and requires that he shall give bond, with surety, conditioned to account and pay over to her, and to no one else, all such sums of money as he may receive as trustee, and that he will account annually with the court, and faithfully perform the duties of trustee, and abide by and perform such order as the court may take touching the trust estate. The decree farther requires, that the penalty of the bond should be double the value of the personal estate, and double the value of the income of the real estate. In considering whether this decree vested the legal estate in the trustee, it is proper to observe, at the outset, that the appellant was, at the date of the decree, a married woman. Where by any instrument a separate estate is given to a feme covert, and a trustee is appointed, an established rule of construction requires the courts to strive to so construe it as to exclude the husband from the reception of the legal title, and to vest it in the trustee. — Ware v. Richardson, 3 Md. R. 505, 549; Hill on Trusts, 232, 407; Harton v. Harton, 7 Term, 652; Williman v. Holmes, 4 Rich. Eq. 480; McNish v. Guerard, 4 Strob. 75. It is also an established principle, that the trustee takes the legal title, whenever it is necessary to enable him to discharge the duties imposed upon him; and such necessity exists, when a trustee is required to take and pay over the 2’ents and profits to the cestui que trust. — Hill on Trusts, 232, 233, 234; Ware v. Richardson, supra; Brewster v. Striker, 2 Comst. 30-37; Morton v. Barrett, 22 Maine, 263; Porter v. Doby, 2 Rich. Eq. 49-53; McNish v. Guerard, 4 Strob. 74; Bass v. Scott, 2 Leigh, 359; Franciscus v. Reigart, 4 Watts, 109. Guided by these rules of construction, we conclude, that the decree of the chancellor, by requiring a bond, conditioned that the trustee shall account for and pay over whatever he may receive as trugtee, [140] and shall account annually with the court, and by characterizing the estate, in the last part of the prescribed condition of the bond, as a trust estate, indicates a clear design to impose upon the trustee the duty of receiving and paying over the income of the estate; and that, having this duty imposed Upon him, he takes the legal title. A trust terminates, whenever its purposes have been accomplished. The language which creates the trust in. this case, indicates a design to make its duration co-extensive with the life-estate. The trustee is appointed trustee for Mrs. Lamkin. "We are not authorized to add a new limitation, by making him trustee for Mrs. Lamkin during coverture. The purposes of the trust will not be accomplished, until the life-estate terminates. — Peake v. Yeldell, 17 Ala. 636; Comby v. McMichael, 19 ib. 751; Gunn v. Barrow, 17 ib. 747; Powell v. Glenn, 21 ib. 468; Hill on Trusts, 239. The death of the trustee does not invest the cestui que trust with the legal title. — Colburn v. Broughton, 9 Ala. 364. The judgment of the court below is affirmed.