Hay v. Hay , 317 Mich. 370 ( 1947 )

The bill of complaint in this cause was filed to obtain judicial construction of the will of Wellington R. Burt, deceased, of a settlement agreement of the heirs and of a decree of the circuit court for Saginaw county in chancery approving the agreement. Also involved is the effect of an order of the probate court assigning residue. Plaintiffs appeal from the decree of the circuit court dismissing their bill of complaint.

Wellington R. Burt, a resident of Saginaw, died March 2, 1919, leaving a last will and testament, together with three codicils to the will. The will was executed August 8, 1917; the three codicils were executed respectively on September 25, 1917, December 13, 1917 and February 6, 1918. The will and codicils were offered for probate on March 8, 1919. At the time of his death, the eight heirs at law of testator and their presumptive interests in his estate were: Jane Burt Hay, daughter, 1/6; George R. Burt, son, 1/6; Emma Burt Hutchings, daughter, 1/6; Marion Burt Stone, daughter, 1/6; Margaret Ashley Paddock, granddaughter, 1/6; Alice Burt McDowell, granddaughter, 1/18; Mary Bell LeBus, granddaughter, 1/18; and Marion Stone Burt, granddaughter, 1/18. The heirs appeared in probate court and filed a protest against the allowance of the will. The contest was certified to the Saginaw county circuit court on June 22, 1920. While the contest was pending and undetermined, all of the above mentioned heirs entered into a compromise agreement with the executor and trustee named in the will, to settle the contest.

Among other things, the agreement provided that the will be admitted to probate, that such heirs as were annuitants should cancel the annuities which had been provided for them in the will, for the confirmation of the title of the heirs at law to lands of deceased located in the State of Minnesota, for a method of financing the payment of $720,000 to the heirs, parties to the agreement, and for the payment of estate taxes and inheritance taxes. The agreement contained no express stipulation as to who were to be the ultimate distributees of the estate at the termination of the trust, except as they were described in the will as "my legal heirs." The contest over the will was withdrawn. The will and three codicils were duly admitted to probate, August 13, 1920.

Plaintiffs do not deny the validity of the settlement agreement, nor the validity of the chancery decree of July 27, 1920, which recognized the validity of the agreement, nor do they deny the validity of the order of the probate court, dated May 24, 1922, closing the administration and assigning the residue of the estate to the trustee. Plaintiffs request the Court to construe the will, the settlement agreement, the chancery decree and the order of the probate court, as those four documents are written, and request the Court to assign to plaintiffs their rights under such construction. Plaintiffs stress as important questions (a) construction of the will as to who are to be considered the distributees and (b) the distribution of the trust estate.

Plaintiffs claim that the will did not set forth a true trust, that there was no grant of title to trustee, but that the trustee received powers in trust and that the trustee's duties are necessarily required to be carried out by powers without title. It is further the claim of plaintiffs that if a true trust was created by the will rather than a grant of powers to the trustee, then the trustee took legal title for the purposes of the trust and plaintiffs further claim that the remainder vested on the death of testator in his heirs and did not remain contingent upon survival at the respective times of distribution.

The bill alleges and the answer admits that the annual account of trustee shows as of May 31, 1940, in the main trust fund, $7,287,507.07 in personal property and $163,498.04 in real estate, and that of the mortgage trust, $1,899,869.28 represents cash and securities and $554,362.76 represents the balance owing from the heirs on mortgage trust indebtedness; that the ordinary net income of the main trust is $250,000 annually and of the mortgage trust, $75,000; and that the annuity charges aggregate $19,666.66 annually, which will decrease with the successive deaths of annuitants. The will provided originally for annuities totaling $89,000 besides other private charities and some public charities, but a codicil eliminated the $5,000 annuity to Marion Burt Stone, his daughter.

Paragraph 20 of the will is as follows:

"(20) The trust herein created shall continue for and during the period of the lives of my two grandsons, Wellington Burt Hay and Wellington R. Burt. Upon the death of the last survivor of these two grandsons, all the real estate remaining in the trust shall be distributed among my legal heirs, but all personal property shall continue in the trust for 21 years after the death of my last surviving grandchild that shall be living at the time of my death, and shall be subject to the terms and conditions hereinbefore set forth. At the end of 21 years after the death of my last surviving grandchild that shall be living at the time of my death, the trust shall terminate and all the funds of every name and nature remaining in the trust shall be distributed to my legal heirs."

The principal question discussed in the briefs is the meaning of the phrase, "my legal heirs," whether it means those who were testator's legal heirs at the time of his death, as plaintiffs claim, or those who would be his legal heirs at the termination of the trust, as defendants claim.

The bill alleges that, according to present expectancies, distribution of the real estate would be delayed until 1969, and of the personal property until 1993 and if group expectancies are taken, the trust might not terminate until the year 2000. Defendants in their brief assert that the trust is "estimated by the mortality tables to continue well into the last decade of the present century." The testator must have had in mind that in the early part of the period between his death and the expiration of the trust, many of the annuities would cease in the ordinary course of events, and there would soon come about a situation where under defendants' theory as to distribution there would be no person who as cestui que trust would have any assured interest in the trust property and thus have a personal incentive to see to it that the trust was properly carried out.

Courts must largely depend on the personal vigilance of beneficiaries to protect their own rights. Merit of a present trustee is no assurance that the trusteeship will be faithfully executed during the next 50 years. It can be assumed that a man of the business acumen of Mr. Burt would not intend to leave the bulk of his estate for a half a century unguarded by the watchful eye of a definitely and assuredly interested distributee, to see to it that the trust was faithfully and efficiently executed.

Testator had such safeguarding in mind and provided in paragraph 22 of the will, "The trustee and executor shall make a yearly report in detail to my son, George R. Burt, as to the condition of the estate." George R. Burt would not be greatly interested in the "report in detail" if his only interest was to secure the annual payment of his annuity, because the annual income of the estate far exceeded all the annuities, and paragraph 14 provided that even the principal could be used for the annuities. If one were to read paragraph 22 without the provisions of paragraph 20 in mind, one could conclude that the testator thought his son George was capable and that testator had clothed him with authority to see to it that the trust was faithfully administered, and that his said son in fact had a vested interest in the final distribution of the trust estate. This provision in paragraph 22 and the provision in paragraph 23 that application for appointment of trustee to fill vacancy could be made by anyone who might be interested as a beneficiary or distributee, are the only matters contained in the will, aside from paragraph 20, that could throw light on the meaning of the words, "my legal heirs," as used in paragraph 20. If defendants' theory as to the meaning of the word "heirs" is adopted, there would be no person during the trusteeship who could definitely assert an interest as a distributee, and so be qualified to make such application as provided for in paragraph 23. No other provisions of the will throw any light on the meaning of the word "heirs" as used in paragraph 20.

If testator had intended the title not to vest in his heirs at his death, the scrivener would probably have prepared an express provision for the vesting in the trustee, a matter of considerable importance, omitted in the will. Adoption of defendants' theory would result in two classes of heirs as beneficiaries with nothing to indicate why Mr. Burt should intend that result. He had consideration for his children, he cared for certain persons, some of whom were related to him and some not, but differentiated among them, providing annuities or legacies for some and withholding his bounty from others, so that it is very apparent that he relied on kinship or personal merit, or his regard, affection or dislike to guide him in making provision for those whom he actually did intend to be his beneficiaries.

Plaintiffs claim that the words in the will, "my legal heirs," refer to those who were the heirs of testator at the time of his death and not to those who would be such at the time of distribution. Plaintiffs further claim that the construction they contend for is a rule of property in Michigan; that immediate vesting is favored in Michigan; that a determination of the heirs as of the time of testator's death prevails over any language in the will that does not clearly indicate futurity of vesting; that determination of vesting at the testator's death prevails even when the vested remainderman cannot possibly ever go into possession; that the will in question as a whole requires the determination to be made as of the time of testator's death; that the testator in his will nowhere mentions whether the distribution should be per stirpes or per capita. Plaintiffs rely upon the fact that the settlement decree of 1920 did not undertake to construe the will, and further point out that the order of the probate court, turning the estate over to the trustee, did not adjudicate whether the distribution should be made to those who were heirs at the time of the testator's death or those who would be his legal heirs at the time of distribution.

Defendants claim that the legal heirs are to be determined as of the time the trust is to terminate. Defendants further claim that there is a valid trust under the will itself and also under the will as modified by the settlement agreement and further, that the decree in chancery approving the settlement agreement in effect adjudicated the validity of the trust and that the order of the court admitting the will to probate as modified by the settlement agreement in conjunction with the order of the probate court assigning the residue to the trustee, was an adjudication that the trust set up in the will is a lawful trust. Defendants further claim that the plaintiffs have no vested remainder under the terms of the will itself, regardless of any adjudication to that effect. Defendants further claim that there being a valid trust, it cannot be terminated at the suit of the remainderman, and further, that the lapse of time and acts and conduct of the parties since the chancery decree of 1920 and the assignment of the residue by the probate court in 1922 should be considered as barring plaintiffs' claim of interest adverse to the trust and adverse to the "unborn" (assumed to be) distributees, and that plaintiffs are guilty of laches.

Much discussion occurs in the briefs of both plaintiffs and defendants as to the effect of the decision in Dodge v.Detroit Trust Co., 300 Mich. 575. The Dodge estate and Wellington R. Burt estate were contemporaneous and had many points of similarity but the issues raised in the instant case are not the same as the issues raised in the Dodge litigation. In the Dodge Case, plaintiff sought to set aside a settlement agreement made during a will contest, by which agreement he obtained 60 per cent. of what he would have received had his father died intestate, by which agreement plaintiff also withdrew his contest of the will and surrendered his annuity. Such matters are not before us in the instant case and the Dodge Case can afford little aid where the settlement agreement and the decree ratifying and validating the agreement are not attacked.

"If he had in mind heirs to be ascertained as of some other date than his death, he would naturally have said so." Thompson v. Clarke, 264 Mass. 56, 59 (161 N.E. 889, 890).

"Had it been his purpose to suspend the vesting of the remainder until his daughter's death, it is very probable he would have said so in unequivocal terms, and not have left it to be arrived at as a matter of inference." Archer v. Jacobs, 125 Iowa, 467, 480 (101 N.W. 195, 199) cited in ReShumway's Estate, 194 Mich. 245, 253 (L.R.A. 1918 A, 578).

We should consider the ordinary meaning of the words, "legal heirs."

"Unless something appears to clearly indicate a different intention, it must be presumed that testator used the word `heirs' in its ordinary legal sense; an `heir' being one on whom local law of descent casts inheritance on the ancestor's death."Goodgeon v. Stuart, 50 R.I. 6 (144 A. 670), cited in 19 Words and Phrases (Perm Ed.), p. 257.

"An heir is one who receives, inherits, or is entitled to succeed to the possession of any property after the death of the owner; one in whom the title of an estate vests on the death of the proprietor." Newcomb v. Lush, 84 Hun (91 N.Y. Sup. Ct.), 254 (32 N.Y. Supp. 526, 529, syllabus), cited in 19 Words and Phrases (Perm. Ed.), p. 258.

"The word heirs has a technical meaning, and as such describes those who succeed to the ownership of real estate upon the death of the owner." Menard v. Campbell (syllabus), 180 Mich. 583 (Ann. Cas. 1916 A, 802). See p. 588 and cases there cited.

"When the testator makes a provision for a gift to a class, and provides that the property shall be distributed among such class at some point of time after testator's death, or upon the happening of some future event, a question is presented as to whether the class of beneficiaries is to be ascertained at testator's death or at the time of the distribution of the gift.

"Where the class of beneficiaries is described as `heirs' or `next of kin' of the testator, the class must be determined asof the death of the testator, unless the will plainly indicated otherwise." (Italics supplied.) Citing cases from England, Connecticut, Florida, Georgia, Illinois, Maryland, Massachusetts, Missouri, New Jersey, North Carolina, Ohio, Rhode Island, South Carolina, Vermont and Virginia. 3 Page on Wills, 3d (Lifetime) Ed., p. 224.

"A legal heir is * * * the person to whom the law would give the decedent's property, real and personal, if he died intestate." In re Wagar's Estate (syllabus), 302 Mich. 243. See p. 247.

"A will speaks from the death of the testator, and the estate vests at that time, unless the will contains some provision to the contrary." citing Rood v. Hovey, 50 Mich. 395; Hibler v. Hibler, 104 Mich. 274, 281. Clark v. Mack, 161 Mich. 545,550 (28 L.R.A. [N.S.] 479).

In 49 A.L.R. 177, 178, the rule is thus stated:

"It is a general rule of testamentary construction, so universally recognized as to render superfluous a full citation of the cases which support it, that, in the absence of clear and unambiguous indications of a different intention to be derived from the context of the will, read in the light of the surrounding circumstances, the class described as testator'sheirs, or next of kin, or relations, or such persons as would take his estate by the rules of law if he had died intestate, towhom a remainder or executory interest is given by the will, is to be ascertained at the death of the testator." (Italics supplied.)

"The law favors that construction of a will which will distribute the testator's estate most nearly in accordance with the statutes of descent and distribution." Gardner v. CityNational Bank Trust Co., 267 Mich. 270, 279. See cases there cited.

"This Court has more than once held that the policy of our statute is in favor of vested rather than contingent or postponed estates, and only plain, unambiguous language by the testator will prevent application of that rule in construing a will." In re Shumway'sEstate, supra, 254.

"The law favors that construction of the will which conforms most nearly to the general rule of inheritance." Murdoch v.Bilderback, 125 Mich. 45, 46.

"Wills must be construed so that the distribution will conform as nearly to the general rule of inheritance as the language will permit." Citing Rivenett v. Bourquin, 53 Mich. 10. In reLamb's Estate, 122 Mich. 239, 241.

"Where upon an examination of the will it clearly appears that it was the intent of the testator that the estate should vest only on the happening of a particular event such intent will govern; where such intent does not clearly appear the estate will vest on the death of the testator. In other words, the intent will be given effect if clearly apparent, otherwise rules of construction will be applied." In re Churchill's Estate,230 Mich. 148, 158, 159.

See In re Patterson's Estate, 227 Mich. 486, 489, in which we quote with approval from Porter v. Porter, 50 Mich. 456, as follows:

"In the Porter Case, after giving the widow an estate for life in all the property of the testator, the will provided:

"`On the decease of my wife, Eliza G. Porter, I desire my property to be divided equally between my surviving children,' et cetera.

"Mr. Justice CAMPBELL, speaking for the Court, said:

"`We think, on the rules of construction which have always prevailed in this State, that immediately on George F. Porter's death his children took vested estates subject only to the life estate and other burdens imposed by law or by the will.'"

Further in the Patterson Case, on p. 491, after again citingPorter v. Porter, supra, we state the rule governing vested estates as follows:

"We think the rule has become one of property in this State, and that it should not be disturbed."

Defendants rely on the recent case, In re Wagar's Estate,292 Mich. 452. However, the Wagar Case does not overturn the rule of property heretofore discussed nor does any Michigan case overturn that rule. The decision in the Wagar Case rested on a situation where a beneficiary predeceased the testator, who must have known that fact and still permitted the will to stand. On p. 455 of that opinion it is stated,

"Clearly, the testator intended to dispose of his whole estate, and to that end provided for devolution in case of a stated contingency. Does the fact that the grandchild died before the will became operative defeat the manifest purpose of the testator?"

Justice WIEST'S opinion answers his own question in the negative. The will was so construed as to avoid causing a legacy to lapse. No such condition confronts us in the instant case, there being no involvement as to a lapse of a legacy. All the provisions of the Burt will are given effect by applying the established rule of property heretofore spoken of.

In the case of In re Shumway's Estate, supra, (decided about six months before the date of Mr. Burt's will), testator devised to his wife a life estate, and further provided, p. 252,

"After her decease, I give, devise and bequeath all of said real estate to my legal heirs, to be divided between them according to the provisions of the statute." (Italics supplied.)

In that case we quote with approval from 40 Cyc. p. 1668,

"There is nothing inconsistent or repugnant in a devise of a life estate with remainder to the life tenant, and such a remainder may be a vested one, and the fact that it can never come into the actual possession of the remainderman should not prevent its being so construed."

The decision in that case determined that the heirs took avested estate at the time of testator's death.

As the main basis for their claim of futurity of vesting, the defendants in the instant case rely on the words in paragraph 20, "shall be distributed." In the Shumway will the words are, "to be divided," and in construing the Shumway will we say, p. 254,

"The only words of futurity found are of a kind presumed to relate particularly to the time of enjoyment of the remainder, rather than when the estates shall vest, and are to be so construed."

Under the foregoing and other authorities it becomes very apparent that the legal heirs of deceased, Wellington R. Burt, are to be determined as of the time of his death and that they took vested estates.

The above quotation regarding the Shumway will applies to and disposes of the main contention of defendants in the instant case. Defendants' claim amounts to a claim that the will created a contingent estate because it is legally impossible for testator to vest title in persons not yet born. Such contingent estates are not favored in law.

The brief of the guardian of the "unborn" cites Brumsey v.Brumsey, 351 Ill. 414 (184 N.E. 627), in which case the testator provided for a life estate to his daughter, and if she left no children, willed the lands "to my then living heirs-at-law." (Italics supplied.) The words "then living" characterize the devise in a manner vitally different from the Burt will. The guardian also cites Genung v. Best, 100 N.J. Eq. 250 (135 A. 514), in which the word "shall" is accentuated and relied on as preventing the vesting in the heirs at the death of testator. The rule for Michigan is laid down by Justice CAMPBELL in Porter v. Porter,supra, and that rule is quoted with approval in the PattersonCase, supra. When we compare the words in the Porter will, "my property to be divided equally between my surviving children" (after death of life tenant, the widow), with the words in the Burt will, "shall be distributed to my legal heirs," it becomes apparent that futurity of determination of the heirs and of vesting is no more indicated in the Burt will than it is in the Porter will. See also, Rood v. Hovey, supra. The law for Michigan is thus seen as settled and it is against defendants' contention.

We construe the Burt will to point to the date of death of testator as the time when the distributees are to be determined, as to the real estate. As to the personal property, the result is the same. The distinction between the times of vesting in the heir of a title to the real and the personal estate is pointed out in Glass v. Crossman, 289 Mich. 130, 139, where we quote with approval from Brewster v. Gage, 280 U.S. 327, 334 (50 Sup. Ct. 115, 74 L. Ed. 457), as follows:

"Upon acceptance of the trust there vests in the administrators or executors, as of the date of the death, title to all personal property belonging to the estate; it is taken, not for themselves, but in the right of others for the proper administration of the estate and for distribution of the residue. The decree of distribution confers no new right; it merely identifies the property remaining, evidences right of possession in the heirs or legatees and requires the administrators or executors to deliver it to them. The legal title so given relates back to the date of the death."

Since the vesting of the title of the heir to the personal property relates back to the date of testator's death, there is no actual ground for construing the words, "my legal heirs," as to who shall be distributees of the personal property, in any manner different from the same words when applied to the real estate in the same paragraph 20 of the will.

We cannot consider that the testator expected any of his children to survive for 21 years the last survivor of his grandchildren who were living at the time of testator's death. We must, however, consider his provision of annuities for most of his heirs. He must have had considerable solicitude for their welfare, so we can fairly consider that he intended that such of his heirs as were annuitants would be presently vested with interests as final distributees, rather than unborn descendants for whom there is not the slightest solicitude shown anywhere in the will or evidenced in the record. Present vesting of rights as distributees can be considered as conferring valuable rights, even though subject to the trust.

Defendants claim testator had verbally expressed himself that none of his children should receive any of his estate. That statement carries no conviction of its truth, and is refuted by the annuity clauses in the will itself.

Even when the defendants' claim is considered in its most favorable light, still there is the plain situation that the will nowhere expresses a clear intention that the vesting of rights as distributees shall be remote and contingent. Unless itclearly appears that the testator intended the vesting to be remote, the rule is practically universal in the various States that present vesting is preferred and is to be presumed. That rule is laid down for Michigan in the following and other cases: Lambertson v.Case, 245 Mich. 208; In re Patterson's Estate, supra; In reShumway's Estate, supra; and Toms v. Williams, 41 Mich. 552.

Relating back to the date of testator's death, upon the completion of the administration of the estate and the turning of the estate over to the trustee named in the will, the eight heirs of testator, as devisees and legatees under the will, became vested with the rights of final distributees of the real and personal estate subject to the trust. The eight heirs heretofore mentioned, their heirs, devisees, legatees, grantees and assigns, are the owners of the real and personal estate, subject to the trust.

Defendants contend that plaintiffs are barred from claiming the benefit of the rule of property spoken of because of the pleadings and decree in the chancery case in 1920. That suit was brought by the trustee and by the guardian of a great grandson for the purpose of disposing of the questions arising upon the discovery that as to that portion of the estate situate in Minnesota the will was void, being in contravention of the law of Minnesota against perpetuities. Wellington Burt Hay, Jr., the only great grandchild of testator that was living at the time of testator's death, was made a party as representative of the class who would be distributees if they were determined as of the time of termination of the trust. The parties had in mind the following: The will was not as yet admitted to probate; the heirs had filed a contest; it would be futile to attempt to get the will to operate on the Minnesota lands; and the will might be construed to give the great grandson, plaintiff, a distributive share if he were alive at the termination of the trust. It could not be known at the date of the chancery decree in 1920, by any reasonable process, that the great grandson would outlive the trusteeship and beadjudicated to be a distributee. It is inconceivable that Judge Snow, who signed the chancery decree, ever intended to make any adjudication to the effect that the great grandson, plaintiff, would be still alive at the expiration of the trust. So far as concerns the rights and interests of the great grandson and the class whom he assumes to represent, all that the decree actually means or can reasonably be considered to mean is that in the event the great grandson, plaintiff, shall be alive at the termination of the trust and if he shall be determined to be a distributee, his interests and the interests of the class he assumes to represent are not adversely affected by the agreement and its approval by the court. It is only reasonable to consider that such was substantially the whole intention of all the parties to that chancery suit, as respecting the "unborn." A great grandchild living at the termination of the trust would have a practically assured interest in the distribution under defendants' theory as to the meaning of "my legal heirs," but could be presumptively considered to have an interest under plaintiffs' theory also. The decree contains no express or implied adjudication that the legal heirs were to be determined at the termination of the trust. The agreement required the eight heirs to surrender their annuities, and that the annuities be cancelled; it gave the eight heirs $720,000 cash and the title in fee to the Minnesota mining lands. The agreement also provided a means of financing the payment of Federal and State inheritance taxes.

The order of the probate court of Saginaw county, May 24, 1922, assigned the residue of the estate,

"To the said Second National Bank of Saginaw, Michigan, as trustee under the provisions of the trust contained in and established by the said last will and testament of said Wellington R. Burt, with full power to handle, administer and dispose of the same * * * under the authority and direction of this court."

The order was never appealed from. By that order the probate court adjudicated the trust established by Mr. Burt's will to be a valid trust. Such order is not subject to collateral attack.Chapin v. Chapin, 229 Mich. 515. The trust is thereby adjudicated to be a lawful trust. Plaintiffs cannot be permitted to treat the trust otherwise. This ruling applies also to plaintiffs' claim that the entire trust is void, as contravening the statute of Minnesota against perpetuities.^* In Minnesota are situated iron mines in which the deceased's holdings amounted in value to about $5,000,000 at the time of his death, the total holdings of his estate amounting to about $13,500,000 at that time. We also find against plaintiffs' claim that because more than a third of the estate (the Minnesota property) was taken out from under the operation of the will, the purpose of testator must be deemed frustrated, and that the trust being void as to Minnesota property, was void in toto, in support of which claim plaintiffs cite In re Richards' Estate, 283 Mich. 485, andGardner v. City National Bank Trust Co., supra. So far as Mr. Burt's will contravened the Minnesota statute, that matter was taken care of in the settlement agreement and chancery decree in 1920. The heirs obtained the Minnesota property. The order of the probate court of May 24, 1922, assigning the residue to the trustee, adjudicated the validity of the trust, including the effect of partial frustration of the purpose of testator in establishing the trust. It follows that the testator is to be considered the settlor of the trust.

The heirs claim that because their agreement, in practical effect, set up the trust, they have the right to change their minds and cause the termination of the trust, as settlors. However, testator set up the trust in his will and at best the heirs can only claim the status of persons who cooperate after the trust has once been undertaken to be set up. Whether that matter can be said to aid them, or could be available to them as part of their other suit now pending on appeal in this Court, is a matter left for consideration in that suit. We determine that such cooperation on the part of the heirs does not give them sufficient ground to require the termination of the trust at this time and in this suit. In the other suit pending on appeal in this Court the heirs seek termination of the trust on other grounds. We do not, in this suit, determine the merits of their claim to terminate the trusteeship for reasons set forth in that litigation. (See Hay v. LeBus, post, 698.)

There remains the question of laches. In view of our determination that the heirs of testator took vested interests at his death, the group of persons referred to in the briefs as the "unborn," that is, those who under defendants' theory would be distributees and determined as heirs as of the time of the termination of the trusteeship, have lost nothing by the delay of plaintiffs in filing the bill. They never had anything to lose; they have expended nothing. However, the proper expenses and fees of any appointee of a court on their behalf could be paid out of the trust under direction of the court having jurisdiction over the trustee. The trustee under the circumstances of this case does not acquire the rights of the distributees, by the lapse of time, and has no right to be heard on the subject of laches in this case.

The decree appealed from should be reversed. The decree of this court should establish the vested interests of the heirs determined as of the date of the death of testator, should establish the trust as valid as res judicata, and should deny a present termination of the trust on grounds not claimed in Hay v. LeBus, post, 698, now pending in this Court.

Each party having prevailed in part, no costs are allowed.

BUSHNELL, J., concurred with REID, J.

^* See Minnesota General Statutes, 1913, §§ 6687, 6688 (Mason's Minnesota Statutes, 1927, §§ 8067, 8068). — REPORTER.