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229 U.S.

Argument for Appellants.

liability to creditors and freedom of alienation are necessary incidents to enjoying the rents and profits from the property by the object of bounty of a testator.

One of the highest duties resting upon a court is to carry out the intentions of a testator as expressed in valid provisions not repugnant to well settled principles of public policy.

In this case the court refuses to compel testamentary trustees to pay over legacies prior to the time specified in the will although the property bequeathed had vested in the legatees.

36 App. D. C. 1, affirmed.

THE facts, which involve the validity of a testamentary trust and the right of the beneficiaries to have the same terminated prior to the time fixed by the will, are stated in the opinion.

Mr. Henry F. Woodard, with whom Mr. Arthur A. Birney was on the brief, for appellants:

Appellants took a vested and fixed interest in their legacies, and the attempt to postpone the time for the enjoyment of the same is inconsistent with their ownership, contrary to public policy, and a restraint on the power of their free disposition or alienation, and is, therefore, void. As no other person claims any interest in the legacies appellants may rightfully waive the provision made for their benefit and have the fund paid to them at this time.

It is agreed that the legacies give appellants a vested interest in the moneys bequeathed, so that the only point in controversy is when the fund is to be paid over. Johnson v. Washington L. & T. Co., 224 U. S. 224; McArthur v. Scott, 113 U. S. 340, 380.

Appellants took a vested and indefeasible interest in their legacies and by no known process of human laws could they be defeated in the enjoyment of the same. Rector v. Dalby, 98 Mo. App. 189.

The will makes no provision with reference to the income or accumulations. It is merely a dry, naked trust.

Counsel for Appellees.

229 U. S.

The fund is not given to the trustees to be by them held, but the gifts are to the children. The only function of the trustee is to lock the fund up and keep the legatees from any participation therein until the youngest reaches the age of 25.

The law is that a trust such as it was attempted to establish in this case is void, or if not void, voidable. For the English rule see Saunders v. Vautier, 4 Beav. Rep. 115; Wharton v. Masterman, App. Cas., 1895, H. of L., p. 186; Josslyn v. Josslyn, 9 Sim. 64; Marsden on Perpetuities, p. 206, citing Hilton v. Hilton, L. R. 14 Eq. 648; Gray on Perpetuities, § 120.

See, also: Re Jacob's Will, 29 Beav. 402; Rocke v. Rocke, 9 Beav. 66; Jackson v. Marjoribanks, 12 Sim. 93; Craxton v. May, L. R. 9 Ch. Div. 338; Magrath v. Morehead, L. R. 12 Eq. 491.

For the American rule, see 22 Am. & Eng. Ency. 735, 2d ed.; 30 Cyc. 1497; Rector v. Dalby, 98 Mo. App. 189. Sears v. Choate, 146 Massachusetts, 395, is parallel to the case at bar and sustains appellants' contention.

See also Bennett v. Chapin, 77 Michigan, 526, 537, citing Mandlebaum v. McDowell, 29 Michigan, 87; Hall v. Tufts, 18 Pick. 459; Bank v. Davis, 21 Pick. 42; Brandon v. Robinson, 18 Ves. 429; Doebler's Appeal, 64 Pa. St. 9; Craig v. Wells, 11 N. Y. 315; Huber v. Donoghue, 49 N. J. Eq. 125; Sanford v. Lackland, 2 Dillon, 6; Brandon v. Robinson, 18 Ves. 429; Kimball v. Crocker, 53 Maine, 263. The Claflin Case, 149 Massachusetts, 19, decided in 1889, does not disapprove of the Sears Case, 146 Massachusetts, 395; and see Wharton v. Masterman, App. Cas. 1895, supra.

The rule as contended for by the appellees and the authorities cited do not sustain their position.

Mrs. Ellen S. Mussey and Mr. J. J. Darlington for appellees.

229 U.S.

Opinion of the Court.

MR. JUSTICE LURTON delivered the opinion of the

court.

This is a bill to terminate a trust under the will of Anna Smith Mallett. The material clauses are in these words:

"3. I give, bequeath and devise to Jean Louisa, Anna Gertrude, and Robert Philo Shelton, being the children of my cousin John Consider Shelton, deceased, all of Bridgeport, Connecticut: the sum of Seventy-five Thousand dollars, being Twenty-five Thousand to each.

"10. I give, bequeath and devise all the rest, residue and remainder of my estate, real and personal wheresoever and whatsoever, of which I may die possessed to the aforesaid Jean Louisa, Anna Gertrude, and R. Philo Shelton.

Codicil.

"In addition to Frank B. King, whom I have appointed executor of this, my last will and testament, I wish to appoint Wm. H. Saunders, of the firm of Wm. H. Saunders & Co., 1407 F Street, Northwest, and George W. White, Paying Teller of the National Metropolitan Bank, cotrustees with the said F. B. King,-to hold in trust the legacies devised to Jean Louisa, Anna Gertrude and Robert Philo Shelton, said trusteeship to terminate when these legatees shall receive their portions of my estate.

"And it is my further will that these legacies to the said Jean Louisa, Anna Gertrude, and Robert Philo Shelton, shall be paid in full when the said Robert Philo Shelton shall reach the age of twenty-five years.'

The complainants are the three legatees, Jean L. Shelton, now more than twenty-one years of age, and Anna Gertrude and Robert Philo Shelton, not yet twenty-one, who sue by their guardian. As the youngest of the lega

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tees was not born until 1896, the bill is premature by many years, if the trust created by the codicil is to be regarded.

That the respective legacies are vested and absolute is undeniable. No other person has any interest in them, and if the trustees should disregard the time of payment and pay over to each legatee his or her legacy when they are competent to give a valid discharge, there would be no one who could call them to account. But the trustees, having regard for the express wish of the testatrix, have refused to terminate the trust, and the object of this proceeding is to compel them to pay over the shares of the legatees as they reach the age of twenty-one years.

The objects of the bounty of the testatrix were distant kinspeople. Besides their postponed legacies they were given the residuum of the estate. What that was does not appear. It is not claimed that they are in want, nor that anything has happened since the will which was not anticipated by the testatrix, and no special reasons are claimed for terminating the trust because of new conditions which she did not take into account. In Sears v. Choate, 146 Massachusetts, 395, a situation arose after the will, which the court thought had not been contemplated by the testator, and for which no provision had been made. The court therefore saw in that a reason for terminating a like trust. In the case at bar no ground, aside from the alleged illegality of the trust, is suggested for defeating the wishes of Miss Mallett other than that it will be convenient and will save the cost of continuing the trust.

The trust is not dry, but is active, and must continue, if not invalid, until the time of payment arrives. Upon what principle, then, is a court of equity to control the trustee by compelling a premature payment? It is a settled principle that trustees having the power to exercise discretion will not be interfered with so long as they are acting bona fide. To do so would be to substitute

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the discretion of the court for that of the trustee. Upon the same and even stronger grounds a court of equity will not undertake to control them in violation of the wishes of the testator. To do that would be to substitute the will of the chancellor for that of the testator. Lewin

on Trusts, 2nd Am. Ed. 448; Nichols v. Eaton, 91 U. S. 716, 724.

There being in this case no ground for saying that there have arisen circumstances and conditions for which the testatrix made no provision, we may not control the trustee, if the postponement directed by the will does not offend against some principle of positive law or settled rule of public policy.

There is no pretense of perpetuity. Creditors are in no way concerned. If the testatrix saw fit to have this fund accumulate in the hands of trustees and thereby postpone the enjoyment of her gift, why shall her will be disregarded? The restriction she imposed may protect her bounty against ill-advised investments and waste or extravagance. She did not undertake to guard against alienation, except in so far as the alienors will take subject to the same postponement of payment. Stier v. Nashville Trust Co., 158 Fed. Rep. 601. Nor did she undertake to protect against creditors as in Nichols v. Eaton, 91 U. S. 716. The single restriction she imposed upon her gift was that the legacies should not be paid until the time named, and in the meantime should be held in trust.

The appellants contend that whether the trust be active or dry, it is one for the benefit of the legatees, and, as no other person has any interest in the legacies, may be waived by them. For this they cite Saunders v. Vautier, 4 Beavan's Reports, 115, and Wharton v. Masterman, Appeal Cases, 1895, pp. 186, 193. In Saunders v. Vautier it was laid down, without argument, that "where a legacy is directed to accumulate for a certain period, or where

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