Jones v. Day

Page, J., delivered the opinion of the Court. In 1885, Sarah Jones conveyed by deed to her son, Owen D. Jones, certain property, in trust for the 'grantor’s own use during her life, with power reserved to herself to sell and dispose of thfe same, or any part thereof as she might see proper; and apply the proceeds thereof to her own use and benefit; and from and after her death, the said property or so much thereof as had not been disposed of by her, should go to her son Owen for life, with power to him to sell the same or any part thereof and to divide the .proceeds of the same “equally between himself and each of his children share and share alike.” Should he, however, not sell as authorized by the deed, upon his death the power of sale was vested in his wife, Annie Jones, with direction to divide the proceeds of sale “equally between herself and each of her children, by the said Owen D. Jones, share and share alike.” And should neither ¹⁰³ Owen D. Jones, nor Annie E. Jones, sell the property or only a part of it, then it and the remaining part, upon their deaths shall pass to their children, to be “equally divided between them share and share alike, &c.” Annie, the wife of Owen, died four years ago, leaving four children, all of whom are still living. Sarah Ann Jones, the mother of Owen, died many years ago. Owen Jones in December, 1904, made sale of the property for the sum of $4,000, and the same is now in Court for distribution among those entitled thereto.

Two of the children, it appears have assigned their respective interests in the-fund to the appellant. The lower Court decreed that by a proper construction of the deed, Owen Jones and his four children each take one-fifth of the; proceeds of sale, and that the trustee was entitled to a commission of two and a-half per cent as compensation. From this decree this appeal was taken. The terms of the deed indicate a purpose on the part of the grantor To devote the property, first, to the use and enjoyment of her son during his life, and afterwards to that of his wife, if she should survive.

But such use was limited only to the property itself or that part of it that remained unsold. So soon as the property was sold, either by the son Owen, or by his wife under and by virtue of the powers conferred by the deed, then a rule of distribution of a