In Re Rogers' Trust Estate

Page, J., delivered the opinion of the Court. The appellants in this case filed a bill to procure the division of certain funds in the hands of the appellee, trustee under the will of Philip Rogers, deceased. By the provisions of the will, the executor was directed to convert the entire estate into money, and after the payment of debts and expenses, to transfer what remained to the appellee in trust to invest the same and pay the interest to his wife during her life and after her death to divide the said interest bearing securities and the accrued interest thereon among his children, share and share alike ; and “ in said division, the child or children ⁶⁷⁶ of a deceased parent, if there be such, are to take in equal proportion, the share to which that deceased parent would have been entitled had he or she been living at the time o said division.” By the third clause the testator makes reference to certain policies of insurance on his life for the exclusive benefit of his wife after his death, and expressed the “ desire ” that as soon as she had collected the amount due her, she should hand over the proceeds to the appellee to hold subject to the same uses and trusts as are expressed in the second clause of the will, as already hereinbefore set forth. And later on by an instrument of writing executed on the 24th January, 1889, she did as desired by her late husband deliver and pay to the appellee a considerable sum of money, the same being the proceeds of the life insurances, “ in order that the same might be invested by the appellee,” for the trust purposes and upon the terms and conditions set forth in said will and thus become a part of said trust estate.” Subsequently, Mrs. Rogers ‘‘ executed and delivered,” (to whom does not appear) a paper, by which she undertook to release all her claim in the trust estate in consideration of one dollar and the “ immediate benefit and enjoyment to accrue to ” her children, upon the “ express condition that it will be void and of no’ effect, so far as it relates to said declaration of trust and its terms, in the event of the decree of the Circuit Court dismissing her bill for the annulment of the trust,” being reversed by the Court of Appeals, etc. The words of the release are as follows : “I hereby formally and solemnly renounce all my right and interest as sole life tenant under the terms of said will * * and declaration of trust, etc., as fully and effectually as if I were now deceased, etc.” It further appears that there are now surviving four children of Philip and Elizabeth Rogers, all of whom are adults and parties to this proceeding; there are also several grandchildren who have not been made parties.

On demurrer, the Court dismissed the bill and from this decree the appeal is taken. The contention is that in consequence of the release