Opinion
01-24-1906
HILES v. GARRISON et al.
W. T. Hilliard, for complainant. T. S. Hilliard, for defendants.
Bill by Caroline W. Hiles against Caroline C Garrison and others, for the construction of the will of Richard Hiles, deceased, and for the appointment of a trustee. Will construed, and trustee appointed.
W. T. Hilliard, for complainant. T. S. Hilliard, for defendants.
BERGEN, V. C. The bill in this case la filed by the complainant, widow of Richard Hiles, deceased, for the construction of his last will and testament and the appointment of a trustee to execute such trusts as may be determined are established by such will. As the relief sought is the appointment of a trustee, and the necessity for such appointment requires the construction of the will as an incident to the relief sought for, the complainant is properly here.
The pertinent part of the will is the second clause, which reads as follows: "I do devise that all my property and bonds and mortgages be put in a trust, and the income be devided equally betweeen my brother, Biddle Hiles and sister, Caroline Garrison, and my wife, as long as she remains my widow, in case of her marring or deth her share to gowe to my brother Biddle Hiles, and my sister Caroline Garrison." The testator died possessed of considerable estate; the personalty having been appraised at the sum of $54,039.88. His real property consisted of an undivided interest in certain real estate in the county of Salem in this state; such interest being estimated by the parties in interest, at something over $20,000. At the time of his death the only next of kin of the testator was his brother, Biddle, and his sister, Caroline. The will was prepared by the testator, and does not clearly express his desires, and the purpose of this cause is to ascertain whether a trust has been established by the terms of such will, and, if so, that a trustee be appointed to carry out such trust.
While this will is very inartistically drawn, I think the clear intention of the testator was to create a trust by the terms of which the income of his estate was to be divided equally between his widow, brother, and sister, and that this trust shall continue as long as his widow lives or remains unmarried, and on the happening of either such events the trust terminates. As the testator has made no disposition of the corpus of the fund after the expiration of the trust estate, he died intestate as to the residue of his property, and it will go to his next of kin. That the testator named no trustee will not prevent the execution of the trust, for the court will always appoint a trustee wherever necessary to sustain the trust, and a trustee will be appointed. The will contains no power of sale, and therefore the trustee cannot dispose of the land by virtue of any authority contained in the will. It is, in my judgment, however, included in the trust, and, subject to that, will vest in the heirs at law of the testator.
I will advise a decree in accordance with the above.