Safe Deposit & Trust Co. v. Sutro

Robinson, J., delivered the opinion of the Court. The question in this case is a narrow one, and one, too, in regard to which there cannot he, it seems to us, much difficulty. Noah Walker,'the testator, died in 1874, seized and possessed of a large and valuable real and personal property, and leaving but one child, Patrick Henry Walker. After various pecuniary and'specific legacies, the testator devises all his property and'estate of every kind to Samuel H. Caughy and Noah W. Caughy, and the survivors of them, and the heirs, executors and administrators of the survivors, in trust that they should: 1st.

Take from the income $10,000 per annum, and invest the same and the accumulation thereof, until the youngest child of. Patrick Henry Walker shall attain the age of twenty-one years, when the whole of said principal sum and the increments thereof, shall constitute a part of the trust estate, to be divided among his grandchildren, as hereinafter stated. 2nd. To permit his son, Patrick Henry Walker, to use and occupy the farm on which the testator resided, free from all rent, taxes, and charges during his life. 3rd. To pay the net income from all the residue of the estate to Patrick Henry Walker during his life. 4th.

To pay $6,000 per annum to Rosa B. Walker after the death of his son, Patrick Henry Walker, so long as she should remain his widow. 5th. After the death of Patrick Henry Walker, all the testator's property was to be held by Samuel H. Caughy and Noah W. Caughy, trustees, or the survivor of them, or- the heirs, executors, or administrators of the survivor, in trust for the children of Patrick Henry Walker living at the time of his death or born thereafter, and the descendants of any deceased child, and for their support and maintenance, until the youngest child should arrive at twenty-one years of age, when the whole property, including the $10,000 and its accur mulation, were to be divided between them. ³⁶⁴ The objects of the testator’s bounty, it thus appears, were his son, his son’s widow, and his son’s children and descendants. None of them, however, were to get any absolute estate at the testator’s death. The son was to have the farm, free from rent, and the income of the estate after taking therefrom $10,000 j>er annum, during his life, the son’s widow $6000 per annum, and the son’s children only so much of the income, as would be necessary for their maintenance.

Tbe trust thus created was to continue from the time of the testator’s death until the youngest child of Patrick Henry Walker attained the age of twenty-one years. The trustees named in the will continued to act as such till Eebruary 12, 1891, when upon the petition of the cestuis que trust, alleging a maladministration of the. trust by said trustees, they were removed, and the appellant was appointed trustee in their place. On November 25,1891, the appellant, substituted trustee, under a power of sale conferred by the will of Noah Walker, and with the written consent of the cestuis que trust, sold a certain warehouse on Baltimore street at public sale to the appellee for ninety-six thousand dollars. The sale thus made was reported to the Court, and the reasons for making the sale are fully and at' large set forth in the report.

Accompanying the report are the affidavits of the real estate agents, to the effect that the price at which the property was sold, was the full market value of the property, and that the sale was to the benefit, interest, and advantage of all persons interested in the trust estate, and with the report the written consent of tbe cestuis que trust to the sale is also filed. The clauses in the will, under which the appellant claims the power and authority to make said sale are as follows: “Thirteenth: I direct that my trustees hereinafter named shall have and exercise full discretion and author ³⁶⁵ ity to lease, sell, or dispose of any and all property of which. I may die seized or possessed, either real or personal, as in their judgment may be deemed for the best interests of the trust estate in their hands, save and except the portions of said property hereinbefore bequeathed, or which shall he hereinafter excepted in the next clause of this will.” “It is my will, and I hereby direct, that the discretion and authority vested in the trustees herein named, in and by the thirteenth item of this will shall he possessed and exercised by the survivor of them, and the heirs, executors, and administrators of the survivor.” The power thus conferred is in a certain sense, no doubt, a discretionary poicer, for it is a power to sell, lease, or dispose of any and all of the trust property, if the trustees, in their judgment, shall deem it best for the interest of the trust estate. But there is a broad distinction between a discretionory power,