Opinion
Submitted October 25th, 1935.
Decided January 31st, 1936.
Testatrix' will provided that her residuary estate be held in trust and invested, and that the income be divided equally among her daughter and two named grandchildren during the lifetime of the daughter; after her death, the income was to be paid equally to the grandchildren and upon each reaching the age of twenty-one, he was to get half of the corpus. The daughter and two grandchildren, both now of age, apply for an equal division of the trust fund among them. There being no other persons now having any interest contingent upon the death of any of the cestuis que trustent which would prevent a termination of the trust, and there being no creditors of the testatrix or other valid legal objection to terminating the trust, held, that the corpus be distributed according to the prayer of the complainants.
On appeal from a decree of the court of chancery advised by Vice-Chancellor Davis, who filed the following opinion:
"The bill in this cause is filed for the purpose of terminating a trust under the will of Julia M. Coles, who died in 1910, leaving her will dated July 10th, 1902, and probated by the surrogate of Burlington county.
"The will makes the following provisions with reference to the residuary estate of the testatrix:
"`I give, devise and bequeath the proceeds of this real estate, and all my personal estate of every description, to my executor hereinafter named, in trust nevertheless, to invest the same and keep the same invested in good securities and investments, and after deducting all proper charges and expenses to pay over the net income, dividends and profits thereof to my daughter, Mattie E. Kelvey, and to my grandchildren, H. Oliver Kelvey and Wilbur M. Kelvey, or to their guardians during their minority, in equal parts share and share alike, during the lifetime of my said daughter, Mattie E. Kelvey; and immediately upon the decease of my daughter, Mattie E. Kelvey, in further trust to pay over the said income, dividends and profits to the guardians of my two grandchildren, H. Oliver Kelvey and Wilbur M. Kelvey, share and share alike during their minority.
"`Immediately upon the arrival of either of my said grandchildren at the age of twenty-one years, the said Mattie E. Kelvey being deceased, I direct my executor hereinafter named to pay to the grandchildren so arriving at the age of twenty-one years the one-half part of the principal sum so held in trust by him as aforesaid absolutely.
"`Immediately upon the arrival of the other of my said grandchildren at the age of twenty-one years, the remaining one-half part of the principal sum so held in trust by him as aforesaid absolutely.
"`Should either of my said grandchildren die before arriving at the age of twenty-one years and during the lifetime of my daughter, Mattie E. Kelvey, the said net income of the whole principal sum to be paid to my daughter, Mattie E. Kelvey, during her natural life and upon her decease to be equally divided share and share alike among any other children the said Mattie E. Kelvey may have her surviving.'
"Samuel P. Tull, then of the city of Philadelphia, an attorney-at-law, was named as executor and appointed to be the trustee. The complainants in this cause are Mattie E. Kelvey, and her two sons, Wilbur M. Kelvey and H. Oliver Kelvey, who are the only persons now interested in the trust except the trustee. Both H. Oliver Kelvey and Wilbur M. Kelvey, the sons of Mattie E. Kelvey, are over the age of twenty-one years, and by the terms of the will each is entitled to one-half of the principal sum held in trust upon the death of Mattie E. Kelvey, in addition to having, during her lifetime, one-third of the income from such estate. Samuel P. Tull, executor and trustee under the will, the only defendant in this cause, filed an account as executor in 1911, but after that time filed no account as trustee until 1934, which latter account was approved by the Burlington county orphans court and allowances made of fees and commissions. In the proceedings in the orphans court, an agreement was executed by the three complainants herein, by which the complainants agreed that the trust fund in the hands of the trustee be equally divided among them. This trust fund now amounts to approximately $1,580, and was ordered distributed by the orphans court among these three complainants, such order being apparently based upon the provisions of the agreement to which I have referred. The complainant, Mattie E. Kelvey, is sixty-one years of age, and under the will she is entitled to the income of one-third of this trust during her lifetime. The agreement contemplates the termination of the trust, the payment to her of one-third of the principal of the trust fund, which would be far in excess of any income which she would receive in the natural course of events during the remainder of her lifetime.
"I am satisfied that there are no other persons now having any interest contingent upon the death of any of these parties which would prevent a termination of this trust. By the terms of the will the complainants H. Oliver Kelvey and Wilbur M. Kelvey, each have a vested remainder in one-half of the corpus. There are no creditors of the testatrix, and there are no valid legal objections to terminating this trust and having the corpus distributed in accordance with the prayer of the complainants. Newlin v. Girard Trust Co., 116 N.J. Eq. 498.
"Before entry of a decree the complainants should file a stipulation in this court by which they agree to the termination of the trust and the distribution of the corpus in the manner set forth in the bill of complaint.
"Some question has been raised by the defendant as to the effect of an order of this court made by the chancellor by consent of the respective parties, directing the deposit of the trust fund, consisting of a United States Liberty Loan bond and some cash. At the time of the final hearing before me this fund had not been deposited and the decree will provide that such fund be distributed in accordance with these conclusions whether the fund has been deposited or not."
Messrs. Potter Fisher, for the appellant.
Mr. Ernest Glickman and Mr. Philip Wendkos, for the respondents.
The decree appealed from will be affirmed, for the reasons expressed in the opinion of Vice-Chancellor Davis.
For affirmance — THE CHIEF-JUSTICE, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 12.
For reversal — None.