of being discharged from the trusts, or should go to reside beyond sea, or neglect or refuse or become incapable to act in the trusts before the same should be fully performed, then and in that case, it should be lawful for the surviving, continuing or acting trustees or trustee for the time being, or the last acting trustee, to nominate any fit person or persons to supply the place of the trustee or trustees so dying, desiring to be discharged or going to reside beyond sea, or neglecting or refusing or becoming incapable to act; and that, immediately after such appointment, the trust estates, hereditaments, monies and premises which, under the will, should be or have been vested in the trustee or trustees so dying, desiring to be discharged or going to reside beyond sea, or refusing, neglecting or becoming incapable to act as aforesaid, and should then be subject to the trusts of the will, should be conveyed, assigned and transferred so that the same might vest in such new trustee or trustees, jointly with the surviving or continuing trustee or trustees, or solely, as the case might require, and in his, her or their heirs, executors, administrators and assigns, upon the trusts therein before declared, or such of them as should be subsisting and capable of taking effect; and that every such new trustee, either before or after such conveyance, assignment or transfer should be made, should have and might exercise the same powers, privileges, authorities and discretion, to all intents and purposes, as if he had been appointed a trustee by the will. Robert Gladstone and T. Robinson died in the testator's lifetime, and John Gladstone alone proved the will. The suit was instituted for the administration of the testator's estate. The decree, amongst other things, 1844. WALSII v. GLADSTONE. 1844. WALSH 0. GLADSTONE. directed the Master to appoint two proper persons to be trustees of the will in the place of Robert Gladstone and Robinson, and that J. Gladstone should convey, assign and transfer the trust property, so that the same might be vested in him and such new trustees, their heirs &c., upon the subsisting trusts of the will. The Master, accordingly, appointed two new trustees of the will, and the trust property was vested in them and J. Gladstone, as directed by the decree. In consequence of the new trustees having claimed the legacies intended for the two persons who died in the testator's lifetime, a sum of stock was set apart out of the testator's assets, to answer those legacies in case the Court should be of opinion that the claimants were entitled to them. The residuary legatees petitioned to have the stock transferred to them, alleging that the legacies lapsed by the deaths of the deceased persons in the testator's lifetime, and that the new trustees had no right or title to them. Mr. Stuart and Mr. Fleming, for the Petitioners, said that a will spoke from the death of the testator, and, therefore, when the testator in this case used the words: "but if any of them shall die," he must have meant, not die in his lifetime, but after his death: that the new trustees had been appointed, not under the power for that purpose contained in the will, but by the Master, who was directed, not merely to approve of, but actually to appoint the new trustees; and, indeed, that the appointment could not have been made under the power; because the trust-property had never vested in Robert Gladstone and Robinson, and the power did not authorize new trustees to be appointed in the place of deceased trustees, unless they were persons in whom the property had been vested. Bone v. Cook (a). Mr. Bethell and Mr. Rolt, for the new Trustees, cited Willing v. Baine (b); Humberstone v. Stanton (c); Walker v. Main (d); and contended that the power did authorize new trustees to be appointed in the event of one or more of them dying in the lifetime of the testator, for the testator had made a distinction between declining to act, and dying without having acted; that the new trustees had been, in fact, appointed, by J. Gladstone, under the power; for he had nominated them to the Master, and had conveyed the trust-property to them; and that it was apparent, on the face of the will, that the testator intended that whoever should accept the office of trustee, should take the legacies. The VICE-CHANCELLOR: I am bound by the words of the will. The testator has not directed that, in every case of a new trustee being appointed, the substituted trustee shall have a legacy of 3007.: but he has bound down the parties who are to have the legacies by a particular description. After giving to each of the executors and trustees named in his will who should prove and act, a legacy of 3007., he provides that if any of them shall die with (a) Maclel. Excheq. Rep. 168. (c) 1 Ves. & Beam. 385. 1844. WALSH v. GLADSTONE. (b) 3 P. W. 113. 1844. WALSH V. GLADSTONE. out having acted, or decline or refuse to act, then and in that case, the legacy or legacies intended for him, her or them who shall so die without having acted, or decline or refuse to act, shall go to the trustee or trustees who, under the power for that purpose contained in his will, shall be appointed in his or their stead. Now the facts of the case are that Mr. Robert Gladstone and Mr. Robinson, who were two of the individuals named as trustees in the will, died in the testator's lifetime; and the terms of the power for appointing new trustees, are: "That in case all or any or either of my said trustees and executors, or any trustee or trustees to be appointed under this present power, shall depart this life, or be desirous of being discharged from the aforesaid trusts, or shall go to reside beyond sea, or shall neglect or refuse or become incapable to act in the said trusts before the same shall be fully executed and performed, then and in that case and as often as the same shall happen, it shall be lawful for the surviving, continuing or acting trustees or trustee for the time being, or the last acting trustee to nominate any fit person or persons to supply the place of the trustee or trustees so dying, desiring to be discharged or going to reside beyond sea, or neglecting or refusing or becoming incapable to act." In my opinion it is very questionable, at the least, whether, under that power, Mr. John Gladstone, who was the only one of the three trustees who survived the testator, could have appointed new trustees: for it seems to be clear that the case which the testator contemplates is that of a vacancy in the trusteeship occasioned by death, refusal to act &c., which was capable of being supplied by a continuing or acting trustee which was not the case that happened. If Mr. Robert Gladstone and Mr. Robinson had survived the testator, there can be no doubt that Mr. John Gladstone might have exercised the power: but, in fact, they did not survive; and therefore, it is questionable, to say the least, whether Mr. John Gladstone could have exercised the power. But, whether he could have exercised it or not, he did not exercise it; nor did he execute the deeds of conveyance by virtue of the power for the Court referred it, to the Master, to appoint two proper persons to be trustees in the room of the deceased parties, and directed Mr. John Gladstone to convey, assign and transfer the trust estate and property, so that the same might be vested in him and the new trustees upon the trusts of the will; and it directed the Master to settle the conveyance and assignment. If Mr. John Gladstone did propose one or even both of the gentlemen whom the Master appointed; still proposing is not nominating. And, indeed it appears, on the face of the deed by which he conveyed and assigned the trust-property to himself and the new trustees, that the appointment was made and the deed settled by the Master and executed by Mr. John Gladstone in obedience to the decree of this Court. Supposing that the testator did intend that every person who should accept the office of a trustee under his will, should be paid a legacy of 3007.; he has not used words sufficient to allow his intention to be effectuated: for I can not find his intention otherwise than from the words that are contained in his will: and, having regard to the words of the will, I am of opinion that, under the circumstances of this case, the gentlemen who have been recently appointed trustees of it, are not entitled to be paid the legacies given to Mr. Robert Gladstone and Mr. Robinson. 1844. WALSH v. GLADSTONE. |