Pole v. Pietsch

Robinson, J., delivered the opinion of the Court. The testator, Otto Pietsch, devised his entire estate to his wife, and son-in-law William E. Thiede, in' trust, for his nine children by a former marriage, the income to be invested until the youngest child should come of age, and then the whole estate to be distributed equally among such of the children as should then be living, and the descendants of any deceased child, per stirpes. He further directed the trustees to allow from time to time, so much of the income as they in their discretion should think proper for the education and support of his minor children by his first wife. He assigns as reason for not making any provision for the children by his second marriage, that his wife’s interest in his estate, would enable her to provide for them, and thus equalize the shares of all his children in his property.

It does not appear from the record, but it was stated in argument, that of the cestuis que trust, two only were minora at the time of the testator’s death. One of these Charles, was in his seventeenth year, and had a clerkship ⁵⁷² in a store, by means of which he was able to support himself. In 1877, three years after his father’s death, Charles was taken sick, first with typhoid pneumonia, followed by disease of his lungs, of which after a lingering illness of eighteen months he died. This bill is filed against the appellees, trustees under the will, to enforce the payment of a claim of the appellant, for medical services rendered to Charles, during his sickness.

To this demand, the appellees say, that under the will of the testator, they had the discretionary power to apply so much of the income of the estate to the education and support of the minor children, as they should think proper; that they had contributed liberally to the support of Charles, and during his last illness, had employed Dr. Christopher Johnston, the family physician, to attend him, and they deny the complainant has any just claim whatever against them. In the exercise of the discretionary power thus conferred on the trustees, a Court of equity has no right to interfere, provided it is honestly and reasonably exercised. They must however act in good faith, having a proper regard to the wishes of the testator, and the nature and character of the trust reposed in them. Clarke vs. Parker, 19 Ves., 1; French vs. Davidson, 3 Madd., 396; Kemp vs. Kemp, 5 Ves., 849.

The testator had confided to them the care of the minor children by his first marriage, and directed them to use so much of the income of his estate, as they should think proper, for their support and education. Now, how was this discretion exercised towards Charles P The proof shows, that from the time of his father’s death, up to the time he was taken sick, nearly three years, he had by his own exertion’s supported himself, without aid or assistance of any kind from the trustees. And even after he was taken sick, so long as he could go out, he still endeavored ⁵⁷³ to earn a support by giving music lessons, at' a time too when according to the testimony, he was unable to undergo the fatigue and labor. The last eighteen months of his life,