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is void which suspends the absolute power to control the same for a longer period than during the lives of persons then in being, and for twenty-one years thereafter. On the death of the beneficiary the estate will vest absolutely in the heirs at law. Bolton & McCoy, for the appellant. F. M. Williams, for the garnishee.
613 KINNE, J. The facts disclosed by this record are, that the plaintiff recovered a judgment against the defendants H. L. Briggs and Blanche A. Briggs for nearly two thousand dollars. Execution issued thereon, and the defendant L. O. Bliss was garnished, as a supposed debtor of Blanche A. Briggs. The garnishee answered before the commissioner that he was not indebted to the defendant, but disclosed that, as one of the trustees appointed by the will of William Wilde, 614 deceased, he held in bis possession property of the value of over sixteen thousand dollars, in trust for Blanche A. Briggs, formerly Wilde. Blanche A. Briggs was a daughter of William Wilde, now deceased; that he held said property by virtue of the provisions of the will of the deceased. After making certain devises to other members of his family the testator's will provides:
“4. To my daughter, Ada Blanche Wilde, I give, devise, and bequeath the undivided one-fourth of the north thirty feet of lot 77, in the city of Dubuque, lowa; also the sum of thirteen thousand three hundred dollars, in bills receivable and accounts, subject to the provisions of paragraph 7 of this will.” Paragraph 7 is as follows:
“7. I hereby name and appoint my brother, Richard Wilde, my wife, Mary R. Wilde, and my friend, L. O. Bliss, trustees, without bond, to receive, manage, and control the property and funds hereby bequeathed and devised to my said daugh. ter, Ada Blanche Wilde, hereby giving them full power to take possession of said property, both real and personal; to collect the rents from said real estate; to invest the moneys and credits in good, safe, interest-bearing securities; and in every way to care for and preserve the fund set apart to my said daughter in such manner as to them shall seem wise and prudent, applying the income and increase thereof to her support, comfort, and education, so far as shall be required for such purposes. The trust hereby created shall be held and construeil as a limitation upon the title and interest vested in my said daughter by the fourth paragraph
of this will, and the same shall continue until, in the judge ment of said trustees, she shall have become fully competent and worthy to be intrusted with the sole care and power of control of said property and funds, or until she shall be married to some competent and worthy man. In 615 either case, when they are satisfied that said devise and bequest will be safely and prudently cared for and preserved, they may surrender all trust funds and property to my said daughter, and the title shall then vest absolutely in her."
A copy of the will was attached to the answer. The plaintiff moved for judgment against the garnishee on his answer. The court overruled the motion, found that the garnishee was not indebted to either of the defendants, and discharged him, to which the plaintiff excepted.
1. If, by the terms of the will of the deceased, Ada Blanche Wilde took the legal title, as well as the beneficial use, of the property, both real and personal, then it necessarily follows that she had power to dispose of it, as the power to alienate is one of the incidents of an absolute gift and of an estate in fee. If such an estate vested in her, her power to alienate it could not be limited, as such liniitation would be inconsistent with the enjoyment of the estate granted. The plaintiff insists that such is the effect of the provisions of the will which we have quoted. If his contention is correct, then the property in the hands of Bliss was subject to the plaintiff's garnishment: McCleary v. Ellis, 54 Iowa, 316; 37 Am. Rep. 205; McCormick Harvesting Machine Co. v. Gates, 75 Iowa, 344; 1 Perry on Trusts, secs. 386, 386 a, 386 b; Deering v. Tucker, 55 Me. 284; Keyser's Appeal, 57 Pa. St. 236. It becomes important, then, to determine whether the will in question vests an absolute title to the property in Ada Blanche Wilde.
The fourth provision expressly says that the gift and devise therein made are subject to the provisions of paragraph 7. That paragraph creates a trust, names the trustees, vests in them absolute authority to take possession of all the property, collect the rents, 616 invest the moneys, and pay over to the daughter, not a sum certain, but the "income and increase,” so far as may be required for certain purposes. It then expressly provides that the trust created shall be held and construed as a limitation upon the title and interest vested in the daughter under the fourth clause of the will. It closes with a provision that when the trust fund and prop
erty are turned over to the daughter the title shall vest absolutely in her. Now, the cardinal rule of construction applied to wills is to ascertain and give effect to the intention of the testator. If that intention can be gathered from the instrument it will always be carried into effect, unless to do so would violate some rule of law. Construing the clauses of the will together, there can be no doubt as to the testator's intention. It is clear that he did not intend that the daughter should have the property in question, nor the control or management of it, until the trustees, in their discretion, should see fit to give it to her. The provisions for the daughter show that the testator did not intend to give her title or possession of the property. If she held title, she might convey or incumber the real estate, or dispose of the personalty, and thus put it out of the power of the trustees to execute the trust. The very fact that they were required to take possession of the property, collect rents, and invest the funds, and pay over, from time to time, to the daughter, so much of the income as was necessary for her support, comfort, and education, implies that the interest of the trustees in the estate should be something more than mere control of it, subject to the will of the daughter. If, as the plaintiff contends, the will makes the daughter the absolute owner of the property, thereby vesting in her the absolute right of disposal of it at any time she sees fit, thens the intention of the testator set aside, and he might as well have given it all to her absolutely, without creating any trusteeship, 617 because his provision therefor could be rendered ineffective at any moment the daughter saw fit to exercise her right of disposal of the property. In other words, the only way effect can be given to the manifest intent of the testator is to hold that the will creates a trust, and that the trustees take the legal title for the use and purposes provided in the will.
It is true that, in terms, the property in the case at bar is not bequeathed or devised to the trustees, nor need it be in order for them to take title. Where trustees are panied in a will the law looks to see what powers are conferred upon them, what duties are required of them, and presumes that it was the testator's intention to give them such an estate as will enable them to execute the powers given, and perform the duties required: Webster v. Cooper, 14 How. 499. And it has been held “that, though no trust is declared in express terms, nor even mentioned, still the intention of the
donor to create the trust, and the existence of the trust itself, may be necessarily inferred from the powers and authority given to the grantee; and in case of wills, even where no estate is directly devised to the executors, but the whole estate is apparently given to the beneficiaries, the trust may be necessarily inferred from the powers and authority conferred upon the executors, and thus, from a construction of the entire will, the intention may be shown that the executors are to take the legal title as trustees of an exprese active trust": 2 Pomeroy's Equity Jurisprudence, sec. 1011; Tobias v. Ketchum, 32 N. Y. 327. A well-known exception to the rule prohibiting restraints upon the alienation of property, legal or equitable, is where a trust is "80 created that no interest vests in the cestui que trust; consequently, such interest cannot be alienated; as, where property is given to trustees to be applied, in their discretion, to the use of a third person, no interest goes to the third person until the trustees have exercised 618 this discretion. So, if property is given to trustees to be applied by them to the support of the cestui que trust and his family, or to be paid over to the cestui que trust for the support of himself and the education and maintenance of his children. In short, if a trust is created for a specific purpose, and is so limited that it is not repugnant to the rule against perpetuities, and is in other respects legal, neither the trustees nor the cestui que trust, nor his creditors or assignees, can divert the property from the appointed purpose. Any conveyance, whether by operation of law or by the act of any of the parties, which disappoints the purposes of the settler by diverting the property or the income from the purposes named, would be a breach of the trust”: 1 Perry on Trusts, sec. 386 a; Rife v. Geyer, 59 Pa. St. 396; 98 Am. Dec. 351; Barnes v. Dow, 59 Vt. 530. The case at bar, in our judgment, comes within this exception. In Barnes v. Dow, 59 Vt. 530, the testator devised all his estate to his nephew, excepting the support of his sister during his lifetime. He then gave his estate in trust to his executor, and gave to the sister a support out of the estate during her life, and the remainder after the termination of the trust to the nephew. The court held that, to carry out the intention of the testator, the legal estate must be held to be in the executors in trust. It said: “If it appears from the will that it was the intent of the testator that the beneficiary should have nothing that she could dispose of, it will be as effectual
to protect the trust as if there was an express clause against alienation": Keyser v. Mitchell, 67 Pa. St. 473; Perkins v. Hays, 3 Gray, 405.
2. The next question that arises is, Is the will, as thus construed, void, as in contravention of our statute against perpetuities? That statute reads: "Every disposition of property is void which suspends the absolute power of 619 controlling the same for a longer period than during the lives of persons then in being, and for twenty-one years thereafter": Code, sec. 1920. Under our law the word "property," used in the statute, includes personal as well as real property: Code, sec. 45, subd. 10. It may be conceded that the rule of law is “inflexible that every limitation is void unless it takes effect ex necessitate, and in all possible contingencies within the prescribed period”: Sears v. Putnam, 102 Mass. 5; Dana V. Murray, 122 N. Y. 604. Suppose the conditions upon which the trustees are under the will authorized to transfer this property to the cestui que trust do not appear to them to exist during the lifetime of the latter. What, then, becomes of the estate? The testator has made no absolute provisions for such a contingency. He has not, in terms, provided in whom the estate shall vest in the supposed case. Clearly, the death of the cestui que trust before the transfer of the estate to her would terminate the trust, and the estate so held by the trustees would pass to the heirs of the cestui que trust. The whole will shows an intent on the part of the testator to dispose of all his estate. Under our construction of this will the legal title is given to the trustees, and they are vested with certain powers and charged with the execution of certain duties relating to the property, but this legal title is held for the cestui que trust, to be transferred to her upon certain contingencies. If the legal title still rested in the trustees at the death of the cestui que trust, then at her death both titles would merge and the estate pass to her heirs: See Toner v. Collins, 67 Iowa, 375; 56 Am. Rep. 346. If this be so, then the will is not open to the objection that the estate—the legal title-may not vest within the time fixed by the statute, as, if not vested by the trustees in the cestui que trust during her lifetime, in any event it would vest in the beirs of the cestui que trust at her death.
620 8. We have, then, an estate, the legal title to which is in the trustees, and the equitable in the cestui que trust; and the question arises, Has the cestui que trust such an interest in the