Jackson v. Matthews

Stockbridge, J., delivered the opinion of the Court. This appeal presents, for the second time the will of the late A. C. E. Matthews.. When the case was before this Court at the last April Term it was remanded without either affirming or reversing the decree, for lack of proper parties. Since that time all parties, who might, under the provisions of the will hereinafter quoted, have any interest in the estate have been brought into the proceeding, and this Court now is called upon to place a construction upon the following provisions of Mr. Matthew’s will: “Item.

I give, devise and beqxteath to my son-in-law, William A. Black, and my friend, James W. Denny, the sum of Eight thousand dollars ($8,000.00) in trust and confidence, nevertheless, and for the following uses and purposes, namely: In trust to invest said sum in safe, productive property or securities and to reinvest the same from time to time as they may deem desirable; to collect the rents, issues and profits therefrom arising and after payment of the necessary expenses to apply and pay over into the hands of my son, Howland A. Matthews, the net income arising from said trust for and during the term of his natural life in as frequent instalments as are desirable, without power in my son to dispose of or anticipate such payments, before the same shall be payable into his hands by my said Trustees, their successor or the survivor of them; and from and after the death of my said son, Howland A. Matthews, this trust shall end and determine (unless ended as hereinafter provided at the discretion of said trustees), and the trust estate shall be divided equally among the child or children of my said son Howland share and share alike. But if my said son shall die without leaving issue or descendants living at the time of his death, the trust ²⁸⁴ property and estate, or such, part thereof as shall then remain in their hands, shall be divided among my children who may then be living in equal parts, share and share alike. “And I hereby fully authorize my said Trustees and the survivor of them whenever they are of opinion that the best interests of my son, Nowland A. Matthews, would be thereby promoted, to advance to him any part or all of said property at their own discretion and judgment, and as to the part of said trust estate so paid over to him as part of the corpus, this trust shall as to such portion or the whole thereof, if the whole be so paid to him, cease and end. But this power to advance the principal or any part thereof to my said- son shall be at the discretion of said Trustees, who shall have full power to retain the trust during my son’s life if they deem it for his best interests so to do.” Two questions ai*e now before this Court: First, whether the trust, and the discretionary control over the disposition of it, which was given to the trustees named in Mr. Matthews’ will, was a personal one, or whether it was one attached to the office of trustee and, therefore, passed to