Bell, James F., Jr.

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268 LAW JOURNAL -MARCH, 1938cipal case on the theory that the bond that he signed was conditioned forthe faithful performance of duties by the defendant justice, said bondin fact covering the misconduct for which the plaintiff sought damages.If the Ohio courts are reluctant to hold the surety to a greater extentof liability, by strict enforcement of the bond than that allegedly con-templated by the statute the defendant surety could still be held liableby the court's adoption of the view expressed in the notary public cases.If it were held that a commitment for contempt is a ministerial act, thebond on which suit was brought would cover such misconduct. However,if the courts would not deem such a position tenable, liability on the partof the surety could still be imposed on the assumption that the legislatureintended the liability of the surety to be co-extensive with that of thejustice of the peace. On this theory, a broader interpretation of thephrase "ministerial duties," as used in the statute, would have to beplaced thereon than was made in the principal case. It is possible to con-strue the statute to cover all but proper judicial acts done within thejustice's jurisdiction. If none of these positions is acceptable to the courtsof Ohio, it would seem that the statute should be amended to affordadequate redress, when considered in the light of the legislature's obviouspurpose in requiring such bond to be given as a prerequisite to the justiceentering into the performance of his duties.MARGARETTA BEYNONTRUSTSDEVIATION FROM THE TERMS OF A TRUSTRufas A. Washburn, in his will, devised certain property to hisexecutrix, in trust, providing that the property shall not be sold duringthe lifetime of his wife, Bessie Washburn, "but the first charge uponthe income shall be a liberal provision for my said wife, during the bal-ance of her natural life." By a subsequent item, the will provides that asum shall be paid for the support of a blind granddaughter, this provisionto continue as long as the wife shall live. "But the same shall only bepaid out of the excess remaining after a comfortable maintenance formy said wife is provided." The residue of the estate, was devised to ason and a daughter. Since the death of the testator, the property hasfallen into disrepair to such an extent that the income has been greatlyreduced. Necessary repairs and taxes will more than consume theincome and there will be nothing left to supply "a liberal provision formy said wife." The wife, as executrix and trustee under the will, asksNOTES 269for a construction permitting her to sell such part of the estate as maybe necessary to pay the taxes, repair the remainder, and provide therebya "comfortable maintenance" for herself. In a unanimous decision, theCourt of Appeals for the Second District held that it had not the powerto modify the provisions of a will to meet changed circumstances andneeds of the beneficiary of a testamentary trust.' Although the courtexpressed a sincere sympathy for the widow, "and sought for somemeans to give her relief," they could find no authority which wouldpermit of a construction to empower the executrix to sell a portion ofthe estate in the face of the express provision in the will not to sell.The decision is clearly in accord with the present status of the lawin Ohio. A well-reasoned decision, written by Judge Robinson andconcurred in by four other judges of the Supreme Court, in 1921, estab-lished the rule that "the changed circumstances and needs of the bene-ficiary do not justify a court in modifying the provisions of a will tomeet the changed circumstances and conditions. The theory that thetestator, had he foreseen the changed circumstances and conditions,would have provided a different and larger income is an assumptionmerely and is no excuse for the usurpation by the court of the right tcdispose of testator's property in a way different from that by himdirected." ' It is upon the authority of this Supreme Court ruling thatthe decision in the principal case is based.The argument of the majority in the Alter case is based on thetheory that if the court, a stranger to the motive which controlled thetestator, is to assume to amend his will because such amendment wouldin their judgment provide a more beneficial result to the legatee, thereis little purpose in retaining the wills statute, which confers upon everylegally capable person the right to dispose of his property as he chooses.From the standpoint of the wills statute, the argument can scarcely beimpeached. The court recognized, however, that in extreme cases inEngland, and in certain jurisdictions in America, courts have permitteda deviation from the terms of a will under the guise of doing what thecourt believed the testator would have done had he foreseen the situa-tion, but denied that any such invasion into the rights of a testator hadever been made in Ohio, and failed to recognize any benefit to bederived from such invasion. It is to this last point that Chief JusticeMarshall, in his dissenting opinion, takes exception, and presents a moreliberal and, in the opinion of the writer, preferable view.The argument of the former Chief Justice is based on the inherentjurisdiction of courts of equity over trusts. He pointed out that it is'Washturn v. Guild, 25 Ohio Abs. 1 (1937).2 Union Savings Bank & Trust Co. v. Alter, io3 Ohio St. 88, 3z N.E. 834 (09Z0).270 LAW JOURNAL-MARCH, 1938often necessary to deviate from the letter of the trust where it hasbecome impossible or grossly inequitable to strictly follow it. The pur-pose of such relief is not to change entirely the purposes of the trust, butit is to carry into effect the spirit and general intent of the settlor. TheOhio courts have not hesitated to do this under their cy pres powers inthe case of charitable trusts.'Many courts in other jurisdictions have, in regard to private trusts,exercised a power somewhat similar to the cy pres power. A commonexpression of this power is found in an early Illinois case, where the courtsaid: "Exigencies often arise not contemplated by the party creating thetrust, and which, had they been anticipated, would undoubtedly havebeen provided for, where the aid of the court of chancery must beinvoked to grant relief imperatively required; and in such cases thecourt must, as far as may be, occupy the place of the party creating thetrust, and do with the fund what he would have dictated had he antici-pated the emergency." 4 The examples are legion where courts havemade similar statements in permitting or ordering a deviation.' All ofthese cases, however, except those based on statutes hereinafter discussed,have recognized that the deviation has been to preserve the trust, thatthe court's power in such a situation "depends not on expediency, but onexigency."' There must be something more than a mere advantage tobe gained by the cestit; the trust itself must be in danger of destruction.This is particularly true where there is an express prohibition; but evenif a sale has not been expressly forbidden, the courts will not grant apower of sale because such sale would secure a greater income and thus'Mclntire's Admrs. and Zanesville Canal & Mfg. Co. v. City of Zanesville, 17 OhioSt. 352 (1867); City of Cincinnati v. McMicken, 6 C.C. 188 (1892); Carr v. Trusteesof Lane Seminary, zi Ohio Abs. 107, 5 Ohio 0. 272 (1935).'Curtiss v. Brown, 29 Ill. 201, 229 (1862).rPennington v. Metropolitan Museum of Art, 65 N.J.Eq. 11, 55 AtI. 468 (1903);In re Pulitzer's Estate, 265 N.Y. 522, 249 N.Y.Supp. 87, 139 Misc. 575, 193 N.E. 30Z(i93i) court sanctioned sale of failing newspaper corporation, notwithstanding settlor'sdirection that there should be no sale; Bibb v. Bibb, 204 Ala. 541, 86 So. 376 (192o) nopower of sale given, but sale granted where property depreciated and subject to tax liens;Hewitt v. Beattie, so6 Conn. 6oz, 138 Atl. 795 (1927) stone quarry could no longer beoperated at a profit; Hale v. Hale, 146 Il. 227, 33 N.E. 858, 20 L.R.A. 247 (1893)property unproductive and subject to heavy taxes and assessments, so that sale necessary tosave investment; Johns v. Montgomery, 265 11. 2s, xo6 N.E. 497, Ann. Cases, 19i6A,996 (1914) land left for agriculture unproductive and could better be sold for buildinglots; Cary v. Cary, 309 IIL 330, 141 N.E. x56 (1923) farming land better suited forsubdivision purposes; Suiter v. McWard, 328 Ill. 462, 159 N.E. 799 (i928) land subjectto mortgage and tax charges, sale of part necessary to save the rest; Security-First Nat.Bank of Los Angeles v. Easter, 136 C.A. 691, 29 Pac. (2d) 422 (1934); Mayall v.Mayall, 63 Minn. 511, 65 N.W. 942 (1896) property unproductive, sale necessary toavoid tax or mortgage sale; Ruggles v. Tyson, 104 Wis. 500, 79 N.W. 766, 48 L.R.A.809 (z899) sale necessary to prevent tax sale; Colonial Trust Co. v. Brown, soS Conn.z6z, 135 Atl. ssS (1926); Young v. Young, 255 Mich. 173, 237 N.W. 535, 77 A.L.R.963 (1931); Mann v. Mann, i22 Me. 468, 12o At. S41 (1923) statute permitted sale;Bogert, Trusts and Trustees, Vol. 3, Sec. s61.o Weakley v. Barrow, 137 Tenn. 224, 192 S.W. 927 (1917).NOTES 271a more beneficial result to the cestui.7 In the principal case, although itwill be much more beneficial for the cestui to sell part of the trust estate,it is also highly probable that the trust property itself may be lost throughtax sale. The case does not show that any such sale was immediatelythreatened, but even if it had been the court would still have refusedthe relief sought. The alternative presented to the trustee-that ofmortgaging the property-is itself a wasting of the estate which, throughforeclosure, may very well result in a destruction of the trust. It isunfortunate that the intent of the settlor to provide adequately for hiswidow should be thwarted by such rigid adherence to the strict letter ofthe instrument creating the trust.The chief strength of a court of equity lies in the discretionary powerwith which it is vested. Because of this power, equity is not bound bythe strict formalism which fetters our courts of law. This freedom isclearly seen in the field of specific performance of contracts, where theequity court is not forced to construe literally the words of the parties toan agreement, but may look to the substance to find the actual intentionof the parties.' And, since jurisdiction over trusts is inherently in thecourt of equity, this same power of discretion should be given the courtin that class of cases. It must be remembered, however, that in theprincipal case, the Court of Appeals was bound by the Supreme Court'sdecision in the Alter case, and on the basis of that decision was deniedthe power to exercise such discretion. But, as has been pointed out,many courts have exercised this inherent power in their administrationof trusts. Many other states have conferred it upon their courts bystatute.' Under several of these statutes, the discretionary power of the'In re Tollcmache, (1903) C h. (Eng.) 4575 Johns v. Johns, 172 Ill. 472, 50N.E. 337 (x8 9 8); Hackett's Ex'rs. v. Hackett's Devisees, i8o Ky. 406, zoz S.W. 864(x91S) refused to deviate from terms to allow investment in realty instead of "in goodand safe securities" in absence of showing that failure to invest in realty would result inloss of trust estate; In re Davis, 14 Allen (Mass.) z4 (1867); Oliver v. Oliver, 3 N.J.Eq.368 (x835)5 Stephens v. Collison, 274 Ill. 389, 113 N.E. 691, Ann. Cases, 19i8D, 559(x9x6), Russel v. Russel, io9 Conn. 187, 145 At!. 648 (1929); Weakley v. Barrow,suprai Matter of Roe, 6 N.Y.Supp. 464, 53 Hun. 433, affirmed in 119 N.Y. 509, 23 N.E.xo63 (x889)5 Matter of Caswell, 197 Wis. 3Z7, zzz N.W. 235 (1928).' Rummington v. Kelley, 7 Ohio (part z) pp. 99, oz (dictum), (836)5 Curtis v.The Factory Site Co., xz Ohio App. 148, 31 C.C. (N.S.) 65, motion to dismiss petition inerror sustained in 17 Ohio L.R. 39z, 65 Bull. i5 (1919); Woloveck v. Schueler, ig OhioApp. ZIo, 23 Ohio L.R. 26z, error not prosecuted (9zz).' Ala. Code (19z8) sees. 10438-10440; Conn. Gen. Stat. (1930) secs. 59zS-59z6Ga. Civil Code (i9z6) sees. 3754-376z5 Cahill's Ill. Rev. Stat. (927) c. 22, sec. 5O;Ind. Burns' Ann. St. (1933) secs. 56-6zi5 Ky. Acts (1934) c. 128, sec. 4708-I; Me. R.S.(930) c. 8z, sec. 1o; Md. Ann. Code (1924) art. 16, sec. 264; Mass. Gen. Laws (59z)c. 203, sec. z6; Mich. Comp. L. (1929) sees. 14397, 14398; Minn. Stat. (9Z7) sec.Sxooi Public Stat. N.H. (x9z6) c. 309, sec. 13; N.J. 4 Comp. St. (910) p. 4684, secs.z3-z65 Cahill's Consol. L. N.Y. (1930) c. Si, see i5; Oregon Code (1930) sees 6-sos to6-8s6; Pardon's Pa. St. (1936) title 20, sec. i561; R.I. Gen. Laws (1923) sec. 4406;Vt. Gen. L. (192) c. 79, sec. 1; Va. Code (930) sec. 5335 (1936) c. 217i 'wis. St.(1931) sec. 231.21.LAW JOURNAL - MARCH, 1938courts has been extended, permitting them to order a sale when thereis not such an emergency as would be necessary to permit a sale in theabsence of the statute. Such expressions as "when advisable," "when forthe best interest,". "when desirable," etc., as found in these statutes, areall evidences of the expanding authority granted to our courts of equity.It is indeed unfortunate, however, that such statutes should be neces-sary in order for equity to exercise a power with which, by its verynature, that branch of our jurisprudence is inherently endowed. In thecase under discussion, the testator stipulated that his estate should not besold during his wife's lifetime; but twice he expressed the desire that theincome from the estate should be applied first to the providing of acomfortable maintenance for his wife. It would seem a permissibleconstruction from these two facts that the dominant intention of thetestator was to liberally provide for his widow. In fact, his very reasonfor prohibiting the sale undoubtedly was to assure that liberal provisionfor her. It seems also permissible to assume that had he foreseen thepresent situation, such a prohibition would never have been made. Bygranting the relief prayed for here, the Court of Appeals would haveprovided an entering wedge by which the Supreme Court could havemodified its decision in the Alter case; it would have provided a basisupon which relief could be granted in such cases of apparent need. Thejurisdiction of equity is an expanding one. Although its principles arebased on precedent and not on the whim or consicence of the chancellor,it nevertheless is capable of adapting itself to the exigency as it arises.If in the exercise of its peculiar jurisdiction over trusts, equity is incapableof meeting such an exigency when it arises, but instead must rigidlyadhere to the latter rather than to the spirit of the trust, there is littlereason for equity's continuing that peculiar jurisdiction; it may as well beremanded to the law courts. As the law of Ohio now stands, however,manifested by the principal case and by the Alter case, our equity courtsare met by such an incapacity. To remove that incapacity, and permitthe court to exercise a mitigating jurisdiction seems to the writer to bethe preferable course. Whether some liberal court will see fit to over-rule this precedent by subsequent decision, or whether the legislaturewill do so by statute, is a question that only future decisions or legislationcan answer.JAMES F. BELL, JR.272

Deviation from the Terms of a Trust

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Deviation from the Terms of a Trust

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