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reason for adopting a construction of our statutes not warranted by well. settled rules of interpretation, which would introduce endless confusion and uncertainty in the administration of our election laws.

"I am instructed to say that GRANGER, J., concurs in this dissent."

A question similar to one of the questions involved in the principal case was presented for decision in the case of Shuck v. State, 136 Ind. 63, and the opinion there announced was in conformity with that in the principal case. Shuck had been nominated and elected to the office of county auditor at an election held in November, 1890. On November 7th of the same year the county treasurer filed a statement with the governor to the effect that Shuck, as an ex-county treasurer, was in default in the sum of eighteen hundred and eighty-four dollars and six cents, and, basing his action upon these stateinents, the governor declined to issue the com. mission to Shuck on the ground that he was ineligible to hold office under section 10 of article 2 of the constitution of the state. On November 20, 1890, Shuck called at the office of the county treasurer, and inquired how much it was claimed that he was short in his accounts, and, upon receiving a response, procured the money for which it was claimed that he was in de. fault, and immediately paid it over to the proper officer, and took his receipt therefor. This payment was made by him under protest, he, at all times, denying that he was in default. Thereafter he demanded his commission from the governor, but the county treasurer then claimed that the shortage was four thousand eight hundred and fifty-four dollars and eighty-four cents, and the commission was still withheld. The official bond of Shuck as auditor was filed November 18, 1895, but the commissioners refused to approve it, because he had no cominission from the governor. Meanwhile, the former incumbent of the office continued to holl possession thereof until December 9, 1891, when the board approved Shuck's bond as auditor, and he at once entered upon the discharge of his official duties. Thereafter an action was brought against Shuck in which a general verdict, on June 17, 1892, was returnel by the jury in his favor, but they also answered special interrogatories, and the court, upon such answers and on the relator's motion, on October 14, 1892, ren lered a judgment in favor of the relator and against the defendant Shuck, and from this judgment he appealed. The ultimate decision of the case in the appellate court was held to depend upon whether or not Shuck was in default at the time of the commencement of his official term of office, and it was held that it was not material whether or not he was in such default at the time of his election, because the provision of the constitution of the state declaring a person so in default to be ineligible to office must be construed as meaning ineligille to hold office, and not merely ineligibility at the time of the election. Upon this point the court said: “In view of the record in this case we do not think it necessary that we should consider the rulings of the trial court upon the demurrers to the several paragraphs of the complaint. We may suggest, however, that the words ‘eligible to any office,'as used in section 91 of the constitution of Indiana, mean ‘eligible to hold the office,' and do not refer to the election. If a person is eligible to hold the office when the time for induction in office arrives he may take the office then, though not eligible to hold the office when elected. The words 'eligible to any office' relate to the capacity to hold the office and the term 'eligible' means regularly qualified.” In support of these propositions the court cited the cases, Brown v. Goben, 122 Iud, 113; Smith v. Moore, 90 Ind. 294.

OFFICERS.-EQUITY JURISDICTION TO TRY THE TITLE TO OFFICE: See the extended note to Fletcher v. Tuttle, 42 Am. St. Rep. 236.

Public Office—ELIGIBILITY.—A foreigner constitutionally ineligible to election to office at the time of his election, for want of declaration of intention to become a citizen, cannot hold the office, although after election, and before the commencement of his term of office, he duly declares such intention: Taylor v. Sullivan, 45 Minn. 309; 22 Am. St. Rep. 729, and note. An alien who has not declared his intentions to become a citizen of the United States may be elected to a public office, and may hold the samo in case his disability be removed before the term of office begins: State v. Murray, 28 Wis. 96; 9 Am. Rep. 489. Que who was disqualified under the constitution to “hold office" at the time of his election is eligible if the disability was removed before the issuing of the certificate and taking por session of the office: Privett v. Bickford, 26 Kan. 52; 40 Am. Rep. 302.

MEEK V. Briggs.


will purporting to devise and bequeath certain property to the testa. tor's daughter, but naming certain persons as trustees to manage and control such property, and to apply the income and increase thereof to her support, comfort, and education, so far as required for such pur. poses, and declaring that the trust shall be deemed a limitation upon the title of the daughter, does not vest the legal title in her, nor give her any power to dispose of the property, though the will also confers upon the trustees power to turn the property over to her when they shall deem her fully competent and worthy to be intrusted with its care or control, or when she shall have married some worthy and com

petent man. TRUST.-T e INTENT OF A DONOR TO CREATE A Trust need not be expressly

declared. It may be inferred from the powers conferred. EXECUTION.–Tue INTEREST OF A BENEFICIARY UNDER A TRUST DEED IS NOT

SUBJECT to execution nor to garnishment when the estate is held by trustees with the power to take and keep possession thereof, and to apply the income and increase to the support, comfort, and education of such beneficiary, so far as may be required for such purposes. Her creditors can have no greater interest in the property than she possesses, and she cannot control the disposition of the trustees, nor require them to turn the property over to her. That result cannot be indirectly secured through the action of her creditors attemptiug to reach the

property or its proceeds under process against her. PERPETUITIES.-A WILL DEVISING AND BEQUEATHING PROPERTY TO Trug.

TEES, to hold possession, and to apply the income and increase to the support, comfort, and education of the beneficiary, so far as may be re. quired, and to turn the property over to her when they shall deem her competent and worthy to assume its control, or when she shall have married some worthy and competent man, does not create a perpetuity forbidden by a statute declaring that every disposition of property

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 appellante 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 his 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 construed 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 judg. 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 limitation 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, then is 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 named 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 tlie powers given, and perforın the duties required: Webster v. Cooper, 14 How. 499. And it has been held" that, though no trust is declared in ex. press terms, nor even mentioned, still the intention of the

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