Gwin v. Hutton

Mates, C. J., delivered the opinion of the court. ' The courts cannot authorize any partition of this estate. To do so would be to destroy the will of the testator, expressed in language which leaves no doubt of his intent, and possibly take away from future contingent beneficiaries an estate which the testator gives them, and which they would get if his will was allowed to stand and be executed as he directs that it shall. The will can be carried out as the testator directs that it shall be, without violating any statute or other rule of the law that would make any of its provisions invalid. Courts may help execute wills, but they have no power to make wills. Under section 7 the trust created by the will may last for not longer than twenty-five years; but it may terminate in much less time should both of the executors die before the expiration of that time. Until the trust created by the will is terminated, no title vests in any of the beneficiaries. Whether they shall ever have any title or not is entirely contingent upon whether or not they are living when the trust is terminated. The beneficial use of the estate is given to the beneficiaries named therein during the continuance of the trust. The title is vested in the trustees, in order to enable them to carry [328] out the will during the time fixed by the will for the continuance of the trust. Section 7 of the will provides that when the trust is terminated, and only at that time, “all the property on hand, including the accumulation whilst in the hands of 'my executors, be divided between my wife and children, share and share alike, a deceased child’s heir to take a deceased child’s portion.” We see that under section 7 of the will no title becomes vested in any of the beneficiaries until the happening of the contingency. The reporter is directed to publish such parts of the will and other pleadings in this cause as are necessary to fully state the case. The decree of the chancellor having been the reverse of this holding, the judgment is reversed, and bill dismissed. Reversed.