Greenwich Trust Co. v. Converse , 100 Conn. 15 ( 1923 )

I should not dissent in this case were I not of the opinion that the majority opinion in effect overrules Security Co. v. Snow,70 Conn. 288, 39 A. 153, and Whitaker v. McDowell,82 Conn. 195, 72 A. 938, and misconceives the decision in Russell v. Hartley, 83 Conn. 654, 78 A. 320. An analysis of these cases will, I think, show that we have not varied either in the underlying principle of these decisions, nor in their application, and that SecurityCo. v. Snow, and Whitaker v. McDowell, supra, control the decision of the case at bar, as the counsel have practically conceded, provided the same application be made now as then. The answers to be given to all of the questions arising upon this reservation depend upon whether the trust created by Article Fifth of the will of Mrs. Converse, conferred upon her husband as trustee, survived to the successor trustee appointed by the Court of Probate. This question will be resolved by ascertaining the intention of the testatrix. Did she intend to create a trust of personal confidence or not? If she did, the power conferred upon the trustee ceased at his death, otherwise it survived.

In Security Co. v. Snow, 70 Conn. 289, 291,39 A. 153, the codicil under construction gave to the testator's wife, Mrs. Snow, in trust, certain estate to be invested and managed by her and "paid and delivered and conveyed" by her to the testator's daughter "from time to time during her natural life as my said wife may deem for the interest and welfare of my said daughter" (now Mrs. Burrill), and any portion of the estate or the net income not so paid, delivered and conveyed at the decease of the daughter, "shall . . . be paid, delivered and conveyed to her lawful heirs." The wife died not having paid, delivered and conveyed any of the principal of the estate. The principal question for the advice of this court was whether the plaintiff as trustee under the will by succession, could exercise the discretionary power given by the codicil to the wife of the testator. The court, by BALDWIN, J., said: "The trust created was such that it might be terminated at any time during her life, at the discretion of the trustee. Whether it should endure for a few months or for many years was to be determined by Mrs. Snow, in view of what she might consider to be the true interest of Mrs. Burrill. . . . The person on whose judgment of her circumstances he depended for measuring out from time to time what on the whole would best promote her welfare, is no longer in existence. . . . The discretionary powers which he gave to his wife for that purpose were purely personal and ended with her life."

In the Converse will the testatrix gave to her "executor hereinafter named," viz, her husband, a fund "to manage and invest . . . in such manner as my said executor shall deem best . . . and to pay over the net income thereof during the lifetime of my said son to and for the support and maintenance of himself and of his wife and child or children, in such proportion and in such manner as my said executor may deem for the best interest of my son and his said family." No question is raised as to the disposition of the income during the life of the son by the above provision. Following it is this provision as to the principal: "with full power to my executor in his absolute discretion, to pay over and advance from time to time any part, or to pay over at any time all, of the principal of said trust fund to or for the benefit of my said son or his wife and children." Upon the death of the son leaving a wife surviving him, the executor is to hold the trust fund remaining and pay over the income therefrom to the wife, and upon her death or remarriage, or, if she does not survive him, upon his death, to distribute the principal of the trust fund to the issue of the son per stripes. There is provision in the Converse will for the payment of the income, which does not appear in the Snow will, but this does not affect the principal question before the court in the construction of each of these wills. The trustee in the Snow will is the wife and in the Converse the husband. In each will the trustee is given the widest discretion to determine the times of payment and their amount. In the Snow will the trustee at her discretion may turn over to the beneficiary, the daughter, during her life from time to time the trust fund in whole or in part as she may deem for "the interest and welfare" of the beneficiary, the daughter. In the Converse will the trustee at his "absolute discretion" may turn over to the son during his life the trust fund in whole or in parts "for the benefit of my said son."

In the Snow will the trustee in her discretion determines when she "may deem it for the interest and welfare" of the daughter to make payments to her of the principal, which in that case included the principal and its increment. In the Converse will the trustee in his absolute discretion determines when he may deem it "for the benefit of my said son" to make payments to him of the principal. The cases are literally on all fours. There is nothing in the Converse will read in the light of its context, from which an intention contrary to the construction we placed on this language in the Snow will can be drawn. There was no duty imposed by either will upon the trustee to pay any portion of the principal to the beneficiary, under any circumstances. The payment of the principal in neither case was made contingent upon its need for the support and maintenance of the son, but in the Snow will "for the interest and welfare" of the daughter, and in the Converse will "for the benefit" of the son, which, in the payment proposed to be made, is to meet bills to provide for improvements to be made upon a cattle ranch upon which the son is living. We should look far to find a better illustration of "personal discretion" than that involved in the payments proposed to be made from this trust fund.

In Whitaker v. McDowell, 82 Conn. 195, 72 A. 938, a testator by his will gave a fund in trust to one, with provision for a successor in case he failed to qualify, to pay over the income to his sister during her life, and "if in his judgment any portion of the principal of said trust fund may be needed for the proper and necessary support of my said sister, to use so much of the principal of said trust fund, as may be needed for her suitable care and maintenance and it is my will that said trustee have an absolute discretion in the manner of the disposition of said trust fund, both principal and income, during the lifetime of my said sister, and his decision in said matter is to be final and conclusive." The use of the principal was limited to the specified purpose, "so much of the principal . . . as may be needed for the proper and necessary support of my sister."

We did not consider the purpose as controlling the question of the testator's intention as to whether a successor trustee could act in place of the original trustee. We held that the last four lines of the clause quoted made clear the intention of the testator. We said concerning them: "The words [quoting] make it clear that it was not the testator's intention to require the trustee as one of his duties to pay to the life beneficiary, at any time, any part of the principal of the trust fund, but that he intended to leave it to the judgment and discretion of the original trustee as to whether or not any part of the principal should be paid to said life beneficiary. Such discretionary power as to the use of the principal was a matter of personal confidence in the original trustee, which cannot be exercised by the plaintiff." In these words we found the clear expression of the testator's intention to make a trust of personal confidence. Without this definite statement of intention we might have found the testator's intention in the limitation of the uses of the fund to the proper and necessary support of the sister.

The Converse will does not limit the use of the principal to the support of the beneficiary, but to his benefit. It, however, expressly commits the power of making payments from the principal to "the absolute discretion" of the named trustee. If we compare the language used in this particular in the Converse will with that used in the Billings will in Whitaker v. McDowell, we find them to be substantially alike except that the Billings will reiterates in differing form the idea of absolute discretion.

Russell v. Hartley, 83 Conn. 654, 78 A. 320, the appellant insists, in effect overrules Security Co. v.Snow, and Whitaker v. McDowell, and in effect the majority opinion supports this conclusion, and this, I believe, to be a mistaken view. The underlying principle upon which each case was decided was the ascertainment of the intention of the testator: Did the testator mean to confer upon the trustee a trust of personal confidence which under the law ceases with the decease of the trustee, or a trust which descended to whomsoever should in succession administer the trust? In Russell v. Hartley, the testator gave to a named trustee in trust a fund and authorized him "to pay over the income of said trust fund to said Caroline E. Hartley during her life and if in the judgment of said trustee she shall need more than the income thereof, then I authorize my said trustee to pay over to her from time to time such portion of the principal of said trust as he may deem necessary for her comfortable support." The specifications of the use of the principal is the same as in Whitaker v. McDowell. The difference is that the authorization to the trustee is not committed to his absolute discretion in such form as to indicate, as that did, a personal trust. We held: "The testatrix contemplates a trust which shall exist during the life of her niece and provide her with a comfortable support, from the income if this be sufficient, and, if not, from the principal in such proportion as the trustee may determine. In the event of a remainder after the termination of the trust the codicil attempts to dispose of this finally. It is wholly improbable the testatrix, knowing the uncertainty of life and solicitous and insistent as she exhibits herself in the care of her niece during her life, should intentionally have inserted in the codicil a clause repugnant to her own purpose, and taken from her niece the protection which was the object of the codicil, by limiting the powers of the trust to the trustee of her own naming. Repugnant provisions must be construed in such way as to preserve the intention of the testatrix."

We then distinguished Security Co. v. Snow and Whitaker v. McDowell, and pointed out the reasons which led to our holding the trust one of personal confidence in these cases. We said: "The underlying and controlling purpose of the testatrix in executing this codicil was to make certain that her niece Caroline should be provided with a comfortable support during her life." And this, we found, could not be accomplished unless her authority to use the principal for that purpose continued during her lifetime. In commenting upon Russell v. Hartley, in Hooker v. Goodwin, 91 Conn. 463,99 A. 1059, we said: "We held that the trustee's `authority to pay over the principal is limited by the purpose named, viz: for her comfortable support.'"

In Williams v. Gardner, 90 Conn. 461, 466,97 A. 854, the trustee was authorized to "make careful inquiry into the social and business character and relations of my said son; and if after such careful inquiry said trustee be of opinion that my said son would prudently and economically manage the same," to transfer to him one third of the trust fund. The determination of this fact as to whether the son would prudently and economically manage the fund was left to the discretion of the trustee. His discretion was conditioned upon the existence of this fact as found by him. He had to determine this as the trustee had to determine in Russell v. Hartley and Hooker v. Goodwin, the existence of the need of payment for the comfortable support of the beneficiary. In Williams v. Gardner, supra, we held: "The determination, by such an inquiry, whether the son is capable of prudently managing the property, can be done by the court or a succeeding trustee as well as by the person appointed by the will. The power to sit in judgment is not a naked power." The true rule, as we have said, for determining whether a discretionary power is a matter of personal confidence in the trustee, or is annexed to the trust, is the ascertainment of the testator's intention. If the power is coupled with a testamentary disposition for the benefit of the cestui quetrust, and is to be exercised or not if and when a stated condition of fact appears to exist, then the original trustee may be compelled to exercise the power in good faith; and unless the will shows a different intention, the power is said to be annexed to the trust and the testator to intend that it shall survive to a successor trustee.

In the Converse will the trustee is authorized to pay over the net income for the support and maintenance of the cestui que trust. This is the specific definite purpose found in the Whitaker v. McDowell, Hartley v. Russell,Williams v. Gardner and Hooker v. Goodwin cases; but the payment of the principal of the trust fund is limited in its purpose "to or for the benefit of" thecestui que trust. Finding what is a benefit to one is quite different from finding what is a comfortable and proper support for one. The one is indefinite, and furnishes no standard of determination except the discretion of the trustee. The other is definite, and furnishes a standard by which a court may determine whether the trustee has exercised his discretion within the bounds set by the will. Security Co. v. Snow, supra. None of the Connecticut cases so far decided, uphold a principle which would justify us in regarding the ascertainment by a trustee under a will of a benefit as a basis for the payment of principal to a cestui que trust, as requiring a finding of a testator's intention to give such power to a successor trustee. If the ascertainment of this benefit were as definite in purpose as the finding of a proper and comfortable support, the testator's intention could not be found from this fact since the other terms of the will show a different intention. The testatrix gave to the trustee full power "in his absolute discretion" to make payment of the principal "to or for the benefit" of the cestui que trust.

This, as we have seen, is practically identical with the provision of the will in Whitaker v. McDowell, except that in addition there was added, "and his decision in said matter is to be final and conclusive." We held in that case that these words made the trust one of personal confidence and hence it did not descend to a successor trustee.

In Russell v. Hartley, supra, we distinguished Whitaker v. McDowell by quoting the ground of JUDGE HALL'S opinion, indicating by our treatment of that opinion our recognition of its essential soundness. And in Williams v. Gardner, supra, we cited Whitaker v.McDowell as authority for the statement that a trust of personal confidence will not descend to a successor trustee.

There are no facts indicating that this trust was not intended to be a personal one. The fact that the testatrix must have contemplated that in the ordinary course of nature her son would outlive the trustee, his father, does not of itself indicate that she intended a continuing trust. It was an evidential fact merely. Nor is the fact that the testatrix intended the trust to operate as to income during the lifetime of the beneficiary conclusive that it was improbable that she intended the principal to be otherwise disposed of. The reasoning of Russell v. Hartley is not applicable, since in that case the underlying and controlling intention of the testator was to provide support for the cestuique trust from the income, and, if needed, from the principal. That is not this case. The trust gave the income to the cestui que trust for his life; the principal might be paid over as a whole or in parts and at different times. It was the determination of this which she committed to the absolute discretion of the trustee, her husband. She might be willing to give this very wide discretion to her husband, but not to another. If the principal were exhausted by these payments, the income for life which she had provided would vanish. It is to be presumed that she could rely on her husband to so carry out the trust that each of these purposes as to the income and principal might be subserved, and that he would not exercise the second in such a way as to destroy the first. There is no presumption that she intended his successor to have this power. The power which this successor trustee desires to exercise is not to provide for support or maintenance, but for bills to be contracted for improvements to be made on a ranch. If this is done the trust fund will be dissipatedpro tanto. We held in Whitaker v. McDowell that an absolute discretion as to the disposition of the principal of a trust conferred by will upon a named trustee is purely personal, and will not devolve upon a successor trustee appointed by the court. The holding was based upon our finding that this construction carried out the intention of the testatrix, and should be decisive in the case at bar, which makes the intention of the testatrix even clearer in the fact that the named trustee is the husband and the discretion over the principal is much broader and may be exercised at one time and to the destruction of the purpose to continue the trust to provide income for the cestui que trust. This, we held inSecurity Co. v. Snow, determined the testator's intention to repose in the named trustee, his wife, the discretionary power for her life to decide as a personal trust what would best promote the welfare of the cestuique trust. The Converse will thus presents the same fact which was held decisive in Whitaker v. McDowell,supra, and that which was held decisive in Security Co. v. Snow. The grant of "absolute discretion" confers far broader power than that of mere discretion. Absolute discretion is uncontrolled discretion. Judge Chitty so holds in Tempest v. Lord Camoys (1882), L. R. 21 Ch. Div. 571, 574, following Gisborne v. Gisborne, L. R. 2 App. Cas. 300. But, said he: "Without the assistance of this judgment, I should have said that `absolute' does mean without any conditions, without any check, and without any control." His construction and interpretation was affirmed by the Lord Justices on appeal.

Our own decisions are authoritative, and SecurityCo. v. Snow, Whitaker v. McDowell, and Russell v. Hartley, have been regarded by other courts and jurists as settling our law, so that there is no present occasion to consider the decisions in other jurisdictions. The note (a) to § 503, Vol. 2, Perry on Trusts Trustees, 6th Edition, contains a fair resume of the doctrine of the decisions elsewhere: "And when power has been given to terminate the trust by turning over the entire property to the beneficiary or to make payments of principal to him from time to time, the courts are still less inclined to hold that the power was intended to pass to a substituted trustee. French v. Northern TrustCo., 197 Ill. 30, 39, 64 N.E. 105; Dillingham v. Martin,61 N.J. Eq. 276, 49 A. 143; Security Co. v. Snow,70 Conn. 288, 39 A. 153; Whitaker v. McDowell, 82 Conn. 195,72 A. 938; Benedict v. Dunning, 110 N.Y. App. Div. 303,97 N.Y.S. 259; Smith v. Floyd,124 N.Y. App. Div. 277, 108 N.Y.S. 775; Dillard v. Dillard,97 Va. 434, 440, 34 S.E. 60."