majority"> Potter, J.

It is contended for the complainants : —

1. That the will gives the interest in the property to Mrs. Head, and that it is not cut down by the subsequent words.

2. That if the trust was good for Mrs. Head’s then existing marriage, she would be entitled to have it transferred to her on becoming discovert, and that the trust should not be kept alive for a second marriage.

*518 3. That the discretion given to the trustees in the will would not pass to any new trustees ; and that therefore nothing could be gained by the continuance of the trust.

We think the first paragraph of the bequest to Mrs. Head, and the subsequent direction to the executors to hold it in trust, are to be read together in order to ascertain the testator’s intention. A case somewhat similar is Leavitt v. Beirne et als. 21 Conn. 1.

Where the instrument creating the trust shows that a discretion was reposed by tbe testator because of his peculiar confidence in the trustees first named by him, it has been held in many cases that such discretion will not pass to new trustees appointed by the court.

But where the withholding this discretionary power from the new trustees would defeat the very object of the trust, the rule is different; for the intention of the testator, when it can be ascertained, must govern.

And his intention that Mrs. Head should not have the absolute disposal of the property, at least during coverture, could not be more strongly expressed.

There has been a great deal of ingenuity exercised upon the subject of trusts and powers, and mixed powers and trusts ; but in all of them the design of the courts seems to have been to carry out the testator’s intention. Gower v. Mainwaring, 2 Ves. 87-89; Brown v. Higgs, 5 Ves. Jun. 495, 505 ; also in 8 Ves. Jun. 561, 570; Cole v. Wade, 16 Ves. Jun. 27; 2 Lead. Cases in Eq. 4th Am. ed. *964.

In cases where the powers are merely collateral and subsidiary, as in some cases of powers to sell or lease, &c., the court might well consider them as not of the essence of the trust, and that therefore they would not pass to new trustees unless such intention was plainly expressed.

• But we may well ask the question in the present case, Can the trust be executed without the power? Would not the object of the testator be entirely defeated by holding that the power and discretion do not pass.

An argument might be drawn from the fact that the power is reposed in his executors without naming them; but we dislike to draw an inference from what may have been merely an accident on the part of the scrivener.

*519 Thomas O. Grreene Sf William H. Bliss, for respondents. Tillinghast Bly, for complainants.

And tlie power in this case seems to be of that class described by Lord Eldon, where its exercise is to be considered imperative, although there may be a discretion as to the mode; a power which the party to whom it is intrusted is required to execute, because otherwise the whole purpose of the trust would fail. The trust and power are so coupled, that one is essential to the existence of the other. It may be treated as a power belonging to the office.

It is not necessary here to express any opinion on the point whether between her two marriages Mrs. Head, now Mrs. Bur-dick, might have compelled a transfer to herself, or might have alienated her interest. Woodmeston v. Walker, 2 Russ. & M. 197.

It is sufficient to say the tendency of the best later authorities in chancery is to hold that, in case of a second marriage, the trust with its restraints would revive. Snell’s Eq. (3d ed.) 307; Lewin on Trusts, 566; Tullett v. Armstrong, 1 Beav. 1; affirmed on appeal, 4 M. & C. 377 ; 2 Spence Eq. Jur. 524; Buttanshaw v. Martin, Johns. 89.

The separate estate is a creation of equity, and its rules should be so modified as to protect the wife in the enjoyment of it. Lord Langdale in Tullett v. Armstrong, 1 Beav. 1, 22 ; and Lord Cottenham in same case on appeal, 4 M. & C. 377, 405.

And in this country the disposition of the courts has been strongly manifested in favor of protecting such provisions against the acts of the cestuis que trust themselves, either during coverture or in contemplation of marriage. 2 Story Eq. Jur. 1395.

We think, therefore, that no decree should be made for an immediate conveyance of the property to Mrs. Burdick; but that if the parties desire it a new trustee or trustees may be appointed, with the powers given to the trustees appointed by will, which will probably secure to the eestui que trust the full benefit of the trust.

Decree appointing a new trustee, ordering the respondents to pay over the trust funds to the new trustee, and directing him to hold them with all the powers and discretions given to the original trustees by the will of Halsey.

Note. — Durfee, C. J., did not take part in the above decision.

Citation profile

Relationships

How this case has been treated — in progress