Opinion
No. 539650.
1945-04-9
CLEVELAND TRUST CO. v. MANSFIELD et al.
Squire, Sanders & Dempsey and George D. Webster, all of Cleveland, for plaintiff. Scudder, Mooun, Stockton & Kerfoot, of New York City, for Fifth Avenue Bank of New York and others.
Action by the Cleveland Trust Company against Valentine Morris Mansfield and others for construction of a trust agreement and a declaratory judgment.
Judgment in accordance with opinion.Squire, Sanders & Dempsey and George D. Webster, all of Cleveland, for plaintiff. Scudder, Mooun, Stockton & Kerfoot, of New York City, for Fifth Avenue Bank of New York and others.
James C. Logue, of Cleveland, for Virginia Morris Nelson and Edna Winchell Morris.
L. Beaumont Parks, of Cleveland, for Katy Fulton Wade.
Robert M. Weh, of Cleveland, for Thomas M. Crabbe.
Malcolm Y. Yost and Harry Pattie, both of Cleveland, for Catherine Morris and John K. Morris.
ORR, Judge.
This is an action brought by the Cleveland Trust Company, successor trustee, for the construction of a trust agreement and declaratory judgment.
Some time prior to 1903 Valentine Morris, a resident of Cuyahoga county, Ohio, died, leaving a substantial estate. He was survived by his widow, Mattie S. Morris, and three children, a son, H. Clay Morris, a daughter, Valentine Morris, and a second son, David Morris.
David was a minor at the time of his father's death. Clay and Valentine were of age and competent. Mattie S. Morris died December 7, 1943, without having remarried. H. Clay Morris died November 6, 1939, leaving surviving him a widow, Edna Winchell Morris, and one child, now Virginia Belle Morris Ahlberg Nelson, who is also referred to as Virginia Morris Nelson.
Valentine Morris married and is now known as Valentine Morris Mansfield. She has been adjudged an incompetent by the Supreme Court of Massachusetts county (the county of her domicile) in the state of New York.
Elizabeth Mansfield Crabbe and Dorothy Page Mansfield, defendants herein, are the only children of Valentine Morris Mansfield. Elizabeth is the mother of one child, Thomas M. Crabbe, a minor. Dorothy Page Mansfield has never married and is a minor.
David V. Morris, son of Valentine Morris and Mattie Morris, died May 13, 1942, leaving surviving him a widow, Dorothy P. Morris and two adopted children, John T. Morris and Catherine W. Morris, both minors.
Katy Fulton Wade, formerly Katy Fulton, is a niece of Mattie Morris.
All of the interested parties are before the court, the competent adults personally, the incompetent by the committee of her property, the minors by their guardians for suit, and the estates by the proper representatives. The unborn issue are also properly represented.
On the 5th day of December, 1903, Mattie S. Morris, H. Clay Morris and Valentine Morris transferred to the Citizens Savings & Trust Company, the original trustee, certain property in trust. This was done for the purpose ‘of continuing the benefit of the property devised to them under the will of Valentine Morris.’ The trust instrument provided that:
‘a. The entire property so conveyed, shall for the purposes of the administration of the trust, be treated as a single fund, and the several interests of the parties hereto shall be treated as interests in a joint fund by them jointly contributed, the interest of said Mattie Morris therein being at the present time a three-sevenths interest and the interest of the remaining parties a two-sevenths interest, each.’
The trustee was given the power of investment and reinvestment and it was provided that ‘all new investments to be made shall be of such character as are prescribed by law for the investment of trust funds by safe deposit and trust companies or in such other property or securities as may be taken with the written approval of the parties hereto, or of a majority of the beneficiaries of the trust for the time being, meaning thereby the majority of those who at the time of making the investment are entitled to receive income from the joint fund.’
The instrument then provides:
‘* * * So long as the parties to this agreement shall continue to reside together, as they do at the present time, and the said Mattie Morris shall provide for all of them a home for their joint use in which they are at liberty to continue to reside, the income arising from their respective interests shall semi-annually or oftener, be paid to them to the extent following, towit:
‘To the said Mattie S. Morris, the sum of Three Thousand Dollars ($3,000) per annum, and to each of the remaining parties hereto, the sum of Forty Dollars ($40) per month, and to each of them in case of sickness, such further amount as in the judgment of the trustee may seem necessary to defray any additional expense resulting therefrom. Should the annual income arising from the share of the said Mattie Morris in the joint fund during such period at any time be less than three thousand dollars ($3,000), the same shall be made up to her from the net income of the remaining parties in equal shares. Upon the said Clay and Valentine being married and having homes of their own, or being compelled for any reason to cease to avail themselves of such family domicile, they shall be entitled to receive from the trustee annually or oftener, the full net income arising from their share of the trust fund, and upon each of them arriving at the age of thirty years, they shall each be entitled to withdraw from the trust fund one-third of their share thereof, and again at arriving at the age of forty-five years, shall be entitled to withdraw one-half of the remainder of their shares.
‘Whenever the said Mattie S. Morris shall cease to maintain such family homestead for the use of those of her children who are unmarried and chose to avail themselves of the benefit thereof, she shall in like manner be entitled to receive the full net income of her share of the joint fund as well as any accumulations thereof.
‘Upon the death of the said Mattie Morris, her share in the trust fund shall be added to and become a part of the residue of the share of the other parties left in trust, after they shall have withdrawn their two-thirds of the same, and from such time such residue shall be retained for the benefit of her said children, parties hereto, and also for the benefit of her niece, Katy Fulton and of her son David if he shall, as hereinafter provided, become a party to this agreement, and from the income arising from such residue there shall in such case be paid to her said niece, if she be then living and unmarried, the sum of forty dollars ($40.00) per month so long as she lives and remains unmarried, and the remainder thereof being annually or oftener divided equally between her said children, parties hereto (including David, if he so become a party); during their respective lives and upon the death of each of them, their respective shares in the fund thus constituted, shall, if they die leaving issue, pass to such issue, and if not then to their next of kin of the blood of their mother.
‘It is mutually covenanted and agreed by and between the parties hereto that David Morris, the minor child of the said Valentine and Mattie Morris, may on his arriving of age, in case he shall at that time convey to the said trustee the balance then coming to him from his guardian, that is his share of the property received by him under the terms of such will, and its accumulations, less the amount in the meantime required for his reasonable maintenance and education, upon the trusts hereof, become a party to this agreement with like force and effect as if he were now of age and had at this time joined in the execution of the same, he in such case being entitled to all the benefits thereof.’
David, now deceased, never became a party to the agreement.
On the 26th day of October, 1907, Mattie S. Morris, H. Clay Morris and Valentine Morris Mansfield, executed what was designated as a supplementary trust agreement. This agreement undertook to change materially the terms of the original trust agreement and to explain and modify the same. For reasons hereinafter set forth it is unnecessary, at this time, to discuss the terms of this instrument.
The court is asked for an interpretation and construction of the trust agreement, and to answer a number of questions. We shall discuss these questions in order:
1. Did the execution and delivery of the agreement of December 5, 1903, between Mattie S. Morris, H. Clay Morris and Valentine Morris, and the acceptance thereof by The Citizens Savings & Trust Company, Trustee, create a valid and irrevocable trust?
This question is easily answered in the affirmative. It is quite apparent from a reading of the agreement of December 5, 1903, that it created a valid and irrevocable trust and we deem further discussion of this question unnecessary.
2. Is the agreement between Mattie S. Morris, H. Clay Morris and Valentine Morris, dated October 26, 1907, a valid and enforceable agreement or was it at its inception invalid and wholly ineffective as to each and every person who is party to this proceeding?
The agreement of October 26, 1907, was invalid at its inception, and wholly ineffective as to each and every person who is a party to this proceeding. This instrument attempted to modify and explain the original instrument, but an examination discloses that the original agreement could not be so modified. It should be pointed out in connection with the validity of the agreement of December 5th, 1903, and the subsequent instrument of October 26, 1907, that this question has heretofore been considered by this court and a similar conclusion reached. However, not all the parties hereto were parties to that action, and the real purpose of that action was merely to provide a change of trustee, and hence it is necessary that there be a finding of this court upon these questions in the action at bar.
3. Is Katy Fulton Wade entitled to receive the sum of $40 per month out of the income of the trust estate, or any part thereof, so long as she lives and remains unmarried or did her marriage to Harry Knox Wade operate to terminate her rights as a beneficiary to the trust?
This question presents a very interesting problem. The agreement provided ‘upon the death of said Mattie Morris * * * such residue shall be retained for the benefit of her said children, parties hereto, and also for the benefit of her niece, Katy Fulton * * * and from the income arising from such residue there shall in such case be paid to her said niece, if she be then living and unmarried, the sum of $40 per month so long as she lives and remains unmarried.’
At the time of the execution of the agreement Katy Fulton was unmarried. She subsequently married Harry Knox Wade who died on February 6, 1943, or ten months prior to the death of Mattie Morris. Mrs. Wade has not remarried. Her rights turn upon the meaning of the word ‘unmarried.’
Does it mean ‘not having a husband or wife,’ or does it mean ‘never having been married?’ There can be no doubt that the word has both meanings, and as was said in Russell v. Lilly, 213 Mass. 529, 100 N.E. 668, 669:
‘The sense in which it is employed by a testator depends upon the general frame of the will, the main purpose to be accomplished by it, the context in which it is found, and the light of the other provisions of the instrument.’
This is, of course, equally true in a trust agreement. The courts of Ohio have not established a general rule of construction. In the case of In re Giles, 6 Cir., 158 F. 596, 598, the court was considering the interpretation of certain exemption statutes and said:
‘We are unable * * * to perceive any distinction between ‘an unmarried female’ and a divorced woman, * * *. Both are unmarried females.'
There are other Ohio cases which are of some help, but they generally turn upon statutory provisions rather than judicial construction. See Brown v. Parham, 15 O.C.D. 640, affirmed without opinion in 71 Ohio St. 516, 74 N.E. 1132; Condon v. Condon, 5 Ohio Supp. 50; Bentz v. Bentz, 8 Ohio Supp. 125. Numerous cases may be cited in support of the two meanings of the word. Courts as well as lexicographers have held either use to be correct and justified. 2 Bouv. Law Dict., Rawle's Third Revision, 1914, p. 3376, in defining the word ‘unmarried’ says
‘Its primary meaning is ‘never having been married’ but it is a word of flexible meaning and may be construed as not having a husband or wife at the time in question. 9 H.L.C., 601. A divorced woman has been held an unmarried woman,' citing In re Giles, supra.
Since both meanings are proper, it becomes the duty of the court to determine the true meaning of the word from the intent of the parties to the agreement. There can be no doubt that the parties having in mind that Katy Fulton was unmarried sought to provide for her while single, but believed that if she had a husband such provision would be unnecessary. It must be assumed that they had no desire to do anything which would effect a restraint upon her marriage, but presumed that whether she needed financial assistance would depend upon her marital state.
In arriving at the intent of the parties, and in particular their understanding of the word, we are greatly helped by the agreement of October 26, 1907. While we have said that this instrument was invalid for the purpose drawn, it clearly shows that the parties used the word ‘unmarried’ as referring to a widow or widower of either Clay or Valentine. The language is as follows:
‘If said surviving wife or husband remain unmarried during his or her lifetime, then * * *.’
We therefore are of the opinion that Katy Fulton Wade is unmarried within the meaning of the trust instrument and is entitled to $40 per month so long as she lives and remains unmarried. We shall later discuss the effect of this upon the remainder of the trust estate.
4. Does Virginia Morris Nelson have a vested interest in that part of the corpus of the trust estate consisting of or represented by the residue of the property contributed by H. Clay Morris and one-half of the property contributed by Mattie S. Morris, with the right to receive the income from such share of such corpus subject to whatever rights Edna Winchell Morris has or may have under the provisions of the agreement of December 14, 1939?
The solution of the problem presented by this question is not free from difficulty. It involves a determination of the character of the remainder, and its time of vesting. The trust agreement is not skillfully drawn as judged by modern standards for such agreements. The provisions with reference to contingencies are very vague and indefinite. There are certain well established principles in Ohio which ordinarily serve as beacons from which one can chart a course, but most of the decisions turn upon the expressions of the testators or donors in creating the trust or making conveyances, and since such expressions are totally lacking in uniformity the cases are not of much assistance. It is well established that the-‘law favors the vesting of estates, and in case of doubt or ambiguity in the language employed in creating a remainder, a construction is favored that will make the remainder a vested one. This rule of interpretation has been variously expressed. For example it is asserted that the law will not construe a remainder to be contingent when it can be taken to be vested, and that vested interests liable to devisement are preferred in construction to interests contingent. The construction in favor of vested remainders is not applied so as to defeat the intention of the testator.’
See 16 Ohio Jur., page 483, and cases cited thereunder, especially Linton v. Laycock, 33 Ohio St. 128.
An equally well recognized doctrine is that as between a construction which effects an earlier or more remote vesting, the presumption is in favor of the earlier vesting.
It is readily apparent that the parties to the agreement desired to continue, insofar as possible, living as they had lived, protecting their inheritance and providing against a situation created by the death of the husband and father. To this end they contemplated that as long as the two children remained unmarried and lived in the family home with the mother, that she should be the chief beneficiary of the trust and that upon the marriage of either or both of the children that this living arrangement would be altered and the benefits received from the trust likewise changed from a family to an individual basis. It was also the intention of the two children to provide that they might withdraw two-thirds of their contributions at times when it would be prudent for them to do so, and to further safeguard themselves and their descendants by providing that they would have the life use of one-third of their estate with the remainder going to their issue.
The plan was a sensible and reasonable one, but difficulty arises because of the failure of the parties to contemplate and adequately provide for contingencies. No matter what the language of the instrument may be with reference to the fund being one fund ‘for the purpose of administration of the trust’ it was the intention of the parties that when they ceased to live together each should receive the income from their respective share and at the death of each child its interest, plus one-half of the remainder of the mother's share, should be distributed to the issue of such child. In other words, it was undoubtedly the intention of the parties that the fund remaining after they had withdrawn their respective two-thirds, with the addition of one-half of the mother's share upon her death, should be enjoyed by them during their respective lives, and upon the death of each of them should pass to their issue, but if they died without issue, then to the next of kin of the mother. Thus it was clear that it was the intention of the parties to create a life estate, with the remainder to their ‘issue.’ We shall later herein discuss the meaning of the word ‘issue’ as used in the agreement.
The failure of the parties to provide for contingencies gives rise to many possibilities as to the vesting of the remainder. It is impossible, without making this opinion too prolix, to adequately discuss all of these possibilites. However, counsel have suggested some of them as follows:
1. That there was a vesting of the remainder as to each interest at the time of the birth of the first child, subject to opening to admit afterborn children.
2. That there was a vesting of the remainder in one interest on the death of H. Clay Morris, with a postponement of the vesting of the other interest until the death of Valentine Morris Mansfield.
3. That there was a vesting of one remainder on the death of the survivor of H. Clay Morris and Mattie Morris, and as to the other interest upon the death of the survivor of Mattie S. Morris and Valentine Morris Mansfield.
4. That there was a vesting of both interests on the death of Mattie S. Morris.
No doubt at the time the agreement was made the parties contemplated that the children would survive the mother, and did not foresee that H. Clay Morris would predecease his mother. However, we are of the opinion that this fact does not prevent the vesting of the remainder as hereinafter set forth. Keeping in mind that the law of Ohio favors the vesting of estates and does not favor contingent remainders, and that the law favors an early vesting, we have reached the conclusion that while the agreement may have been contingent when it was entered into because of the fact that the life tenants then had no children, the remainder as to each interest became vested at the time of the birth of the first child, subject, of course, to reopening to admit afterborn children.
When an interest is so limited that the right to possession or enjoyment is subject to a condition precedent other than the termination of prior interests, such interest is said to be contingent, but if the right to possession or enjoyment is not subject to a condition precedent other than the termination of prior interests, it is not contingent, even though the possession is to begin at some future time.
Applying this rule we reach the conclusion that upon the birth of the first child any contingency which may have existed was removed, because upon the happening of this event there was issue which could take upon the termination of the life estates. This is true even though the vested remainder was subject to a partial divesting in the event of the birth of other issue prior to the distribution of the residue of the trust estate upon the death of the life tenant. The fact that the mother's share could not be added until her death does not in our opinion prevent the vesting as herein indicated.
Specifically answering question 4, the court is of the opinion that Virginia Morris Nelson has a vested interest in the corpus of the trust estate consisting of the residue of the property contributed by her father and one-half of the share contributed by her grandmother, and has the right to receive the income from such share of such corpus. The court is not concerned with the agreement between Virginia Morris Nelson and Edna Winchell Morris dated December 14, 1939, and does not attempt to pass upon the rights of the parties to such agreement.
5. Should the court find and determine that Katy Fulton Wade is entitled to receive income from the trust estate so long as she lives and remains unmarried
a. is $20 per month payable out of the share of income to which Virginia Morris Nelson and Edna Winchell Morris might otherwise be entitled and is the same amount payable out of the share of income to which Valentine Morris Mansfield might be otherwise entitled?
b. Does the existence of such right and interest of Katy Fulton Wade operate to postpone the distribution in whole or in part of the share of the trust estate which might otherwise be personally distributable to Virginia Morris Nelson?
Since we have reached the determination that Katy Fulton Wade is entitled to receive income from the trust estate so long as she lives and remains unmarried, it becomes incumbent upon the court to answer this question fully. Before doing so, however, it should be stated that it developed in the trial of this cause that an agreement had been made between Mrs. Wade and Mrs. Nelson whereby in the event the court should determine that Mrs. Wade was entitled to the sum of $20 per month from the Nelson share of the income, that Mrs. Nelson would provide an annuity in such sum for the benefit of Mrs. Wade as long as she was entitled to receive such income. There has been no such arrangement suggested, with reference to what might be termed the Mansfield share of the income, for obvious reasons.
It is the court's opinion that $20 per month is payable out of each of the shares, that is the Nelson share and the Mansfield share. We are convinced that it was not the intention of the parties to the agreement to prevent the distribution of the trust estate for an indeterminate time after the death of the children in order that a small annuity might be provided for the benefit of Mrs. Wade.
It would seem inequitable to deprive those justly entitled to the benefit of the estate if the court could by appropriate order permit distribution without jeopardizing the interests of any of the parties. It would seem therefore that the arrangement made between Mrs. Nelson and Mrs. Wade would permit a partial distribution. There is ample authority for such a course of conduct.
In the case of Wayman v. Follansbee, 253 Ill. 602, 98 N.E. 21, 27, the court in discussing a situation in which there was complete vesting of one-half of an estate subject only to the payment of monthly allowancesand a contingent legacy said-‘At all events, it would be highly inequitable to wholly deprive appellees of all benefits from the use of their interests until most of them would be probably dead, in order to increase the possible income of the minor's share of the property.’
In the case of Williams v. Thacher, 186 Mass. 293, 71 N.E. 567, in Syllabus 1, it is said-‘It is within the power of the court to terminate a trust as to certain property and to continue it as to other property where reasons exist for doing so.’
In Scott on Trusts, in Vol. 3, page 1875, the author says: ‘* * * in a number of cases the court has decreed the partial termination of the trust although one or more of the beneficiaries did not consent to such termination on the ground that the interest of the non-consenting beneficiaries were not prejudiced thereby. Thus when one beneficiary is entitled to an annuity out of the trust estate and subject to the payment of the annuity another beneficiary is entitled to the income and principal of the estate, the court may decree a partial termination of the trust, reserving in the estate sufficient property to secure the payment of the annuity, and distributing the rest of the estate to such other beneficiary.’
In view of the arrangement between Mrs. Wade and Mrs. Nelson there is no reason why there should not be an immediate distribution to Mrs. Nelson and the trustees are authorized to make same upon the execution of the agreement between Mrs. Nelson and Mrs. Wade providing for the annuity of $20 per month, and the other necessary releases and documents in connection therewith.
With respect to the annuity of Mrs. Wade in the Mansfield interest here, of course, we have parties who are not capable of consenting, but by virtue of the authorities above quoted we believe it is within the power of this court to provide for a partial termination.
We understand further that Mrs. Wade has executed or is willing to execute a release releasing the trustee and the Valentine Morris Mansfield share from all claims over and above the sum of $20 per month. In view of such fact the court is of the opinion that upon distribution of the Nelson share Mrs. Wade is entitled to receive income only to the extent of $20 per month from the Mansfield share, and if the income is not sufficient to produce $20 per month, then she should be limited to the income. The trustee is therefore authorized to enter into such agreement and understanding with Mrs. Wade and to do all things necessary for its performance.
6. Should the court find and determine that Virginia Morris Nelson does not now have a vested interest in the share of the trust estate referred to in question 4, subject to whatever rights Edna Winchell Morris has or may have under the provisions of the supplemental trust agreement and/or the agreement of December 14, 1939, upon the happening of what event will such interest vest?
The court has already determined that Virginia Morris Nelson does have a vested interest, and further answer to this question is therefore unnecessary.
7. Do Elizabeth Mansfield Crabbe and Dorothy Page Mansfield have in equal shares a vested interest in that part of the corpus of the trust estate consisting of or represented by the residue of the property contributed by Valentine Morris Mansfield and one-half of the property contributed by Mattie S. Morris?
This question is answered in the affirmative for the reasons above given. It is claimed by the defendant Thomas M. Crabbe, who is a grand-child of Valentine Mansfield, that the word ‘issue’ as used in the trust agreement means lineal descendants, and that there was no intention on the part of the parties to the agreement to limit the term ‘issue’ to children. It consequently is claimed that whatever distribution is made to issue must of necessity be made upon a per capita rather than per stirpes basis.
It must be confessed that there is very respectable authority for this position. However, in the case of Cochrel v. Robinson, 113 Ohio St. 526, 149 N.E. 871, 873, the court had under consideration the meaning of the word ‘issue’ and said: ‘The word ‘issue’ has several meanings in the law of descendants' estates. What its meaning may be in a given case depends upon the circumstances under which it is used, whether it be found in a will, a contract, or statute. Its primary signification imports descendants and has to do with the blood of the ancestor, but by general use the word ‘issue’ has often a wider signification and may include not only ‘children’ but ‘grandchildren’, ‘descendants,’ and ‘adopted children.”
In the case of Watson v. Watson, 34 Ohio App. 311, 171 N.E. 257, 258, the court made the following statement: ‘The English cases and many authorities in America give to the word ‘issue’ a broad meaning corresponding with descendants. In the absence of words indicating a contrary intention, it includes children, grandchildren, and so on.'
There are man authorities which support the contention of the grandchild, Thomas Crabbe, that the word as used in its legal sense in making a future gift to issue vests a capital share in all descendants including grandchildren and those more remote whose parents are living as well as the parent itself. See Security Trust Co. v. Lovett, 78 N.J.Eq. 445, 79 A. 616.
This case supports the view that the word ‘issue’ is used in an unrestricted sense.
There are, however, a great many authorities which rebel at the thought of parents and children taking competitively. These cases follow the reasoning that generally it is the intention of the donor or testator in using the word ‘issue’ to mean children of a named ancestor, that is a single generation only. These cases quite properly seek to ascertain the true intent of the testator or donor.
In the case of Watson v. Watson, supra, the court construes a will by which the testator devised property to a daughter for life and at the death ‘To the issue of her body then living.’ This case also presented the question as to proportion of the distribution as to grandchildren and the court in answering these questions said:
‘We must now determine what is the share of each of the beneficiaries. Is there intended a per capita or per stirpes distribution? On this point there is conflict among the authorities. There are no reported cases in Ohio on this precise question. It has been held in a number of other jurisdictions that a per capita distribution should be applied. On the other hand, in Massachusetts the word ‘issue’ is regarded as importing representation. A number of reasons suggest themselves to support the Massachusetts rule. ‘The law favors an equal distribution of an estate among the children of the deceased owner; and it favors a distribution between near and remote heirs per stirpes in preference to per capits.’ Kilgore v. Kilgore, 127 Ind. 276, 26 N.E. 56.
‘This policy finds expression in the statute law of Ohio. Sections 8581-8584, General Code (now Sections 10503-7 to 10503-10). The rule above referred to as applied in some jurisdictions permits children to compete with their parents in the distribution of the estate. This is in conflict with the normal human feeling of equality. It is more just for distribution to be according to stock rather than by the persons. The instant case comes within the language and decision of Jackson v. Jackson, 153 Mass. 374, 26 N.E. 1112, 1113,11 L.R.A. 305, 25 Am.St.Rep. 643. The court there said: ‘We are of the opinion that when by a will personal property is given in trust to pay the income to a person during life, and on the death of such person to pay the principal sum to his issue then living, it is to be presumed that the intention was that the issue should include all lineal descendants, and that they should take per stirpes, unless from some other language of the will a contrary intention appears.’
* * *
‘In the will now under consideration there are no such expressions as ‘share and share alike’ or ‘in equal shares' or ‘to be equally divided.’ The use of these words would probably require a setting off of the several interests per capita. In such a case the intention of the testator could not be considered as authorizing a stirpital distribution. The Massachusetts decisions go to the length of applying a per stirpes construction even in such a case.'
In 117 A.L.R. 706, the following annotation appears:
‘The tendency of the courts to break away from the rule, stated to be the general rule except in Massachusetts, in the earlier annotation in 2 A.L.R., on page 963, that under a gift to ‘issue’ where there are no terms in the context to qualify the meaning of the word ‘issue,’ the children of the ancestor and the issue of such children, although the parent is living, as well as the issue of the deceased children take in equal shares per capita and not per stirpes * * * is evidenced by many of the later cases construing the word ‘issue.’
‘In the absence of controlling context, the states of Illinois and Ohio have aligned themselves with Massachusetts and favor a per stirpes connotation of the word ‘issue.”
See Stamford Trust Co. v. Lockwood, 98 Conn. 337, 119 A. 218;Wyeth v. Crane, 342 Ill. 545, 174 N.E. 871;Rhode Island Hospital Trust Co., Ex'r, v. Bridgham et al., 42 R.I. 161, 106 A. 149, 5 A.L.R. 185;Newcomb v. Newcomb, 197 Ky. 801, 248 S.W. 198.
We therefore believe that whatever distribution is made should be upon a per stirpes basis and not upon a per capita basis.
8. Should the court find and determine that the interest in the share of the corpus of the trust estate referred to in question 7 held or retained for the account of Valentine Morris Mansfield has not vested but will vest on the death of the latter, what class or classes of persons will constitute issue of Valentine Morris Mansfield within the meaning of the provisions of the original trust agreement and what will be the distributable portion of each class if more than one?
The court has found and determined that the interest in the Mansfield share of the corpus of the trust is vested in Elizabeth Mansfield Crabbe and Dorothy Page Mansfield, subject to the possibility, although it is remote, of partial devisement in order to provide for after born children of their mother, and we believe that in answering question 7 we have answered any question which might arise as to the distributable portion of each class should that question hereafter be presented.
9. Does the estate of David V. Morris or Dorothy T. Morris as administratrix, have any right, title or interest in the trust estate?
David V. Morris never availed himself of the opportunity offered by the terms of the trust instrument to become a party to the agreement. His children being adopted children and therefore not of the blood of Mattie Morris can under no possible construction have an interest in the estate. The answer to this question is therefore in the negative.
In the second cause of action the plaintiff asks the court to interpret the clause in the trust agreement with reference to investment of trust funds and asks that we answer the following questions: which we shall consider together.
1. Is the power and authority of plaintiff to make investments and reinvestments of monies and funds of the trust estate governed, controlled or limited by the provisions of Section 3821a of the Revised Statutes of the state of Ohio with respect to investments of trust funds by safe deposit and trust companies in effect on December 10, 1903, the date of the acceptance of the trust by plaintiff's predecessor trustee?
2. Should the court find and determine that plaintiff's power and authority to make investments and reinvestments of monies and funds of the trust estate is not governed, controlled or limited by the provisions of Section 3821a of the Revised Statutes of the state of Ohio with respect to investments of trust funds by safe deposit and trust companies in effect on December 5, 1903, does plaintiff have the power and authority to invest and reinvest uninvested monies and funds of the trust estate according to, and as authorized by, the present laws of the state of Ohio with respect to the investment of trust funds by a trust company as set forth in Section 710-166 of the General Code of the state of Ohio and will plaintiff or any successor trust company trustee have the power and authority to invest and reinvest any uninvested monies and funds of the trust estate in such securities or other types of investment as may in the future be authorized either by amendments to existing provisions of the General Code of Ohio or by the enactment of new laws by the state of Ohio with respect to investments of trust funds by trust companies for the account of trust estates?
3. Who among the beneficiaries of the income of the trust estate may exercise the power to approve investments of the entire fund or any part thereof within the provisions of that part of the trust agreement last above quoted?
The trust instrument provided that the trustee had broad power of management and investment ‘for the purpose of providing therefrom as large an income as shall be consistent with the reasonable security of the investment.’ The parties then provided that all ‘new investments' should be of such character as are prescribed by law for the investment of trust funds by safety deposit and trust companies or any such other property or securities as might be taken with the written approval of the parties or a majority of the beneficiaries. This would seem to indicate the trustee might retain those investments which had been made by the parties themselves and by them transferred to it, but as to all new investments a different method was prescribed.
There appears to be no cases in this state which have construed a provision of this nature and we are advised by counsel that no decisions have been found establishing any general rule of construction which would be of assistance to the court. The court is of the opinion that it was the intention of the parties to limit new investments, which of course would include reinvestments, to those investments which were permitted by the provisions of Section 3821a of the Revised Statutes of the state of Ohio, which were in effect on December 5, 1903, unless the approval of the parties or the beneficiaries was obtained.
In matters of this kind the courts are required to give a strict construction, and it seems to the court that it can not be said that the parties had in mind providing for investment in accordance with statutes as they might later be enacted. There has been a material change in the law with respect to investments by trust companies since this agreement was prepared, and while it might well be argued that the parties anticipated this fact and that it was their intention to permit investment in any security which might at any time be authorized or permitted by statute, we are persuaded that this argument fails in the light of the instructions contained in the instrument permitting investments in securities not within the statutory class if the parties or beneficiaries consented to such investments.
Had the parties intended to include securities thereafter authorized by law they could very easily have used language to that effect.
The court is therefore of the opinion that it was the intention to limit the trustee strictly to those investments which were then permitted by statute and of which the parties presumably had knowledge, and the only departure from this limitation would be with the approval of the parties or their beneficiaries.
In reaching this conclusion we are not unmindful of certain decisions, especially in the state of New York, which would seem to indicate the contrary, but again none of the cases which we have examined involved language of the character and nature used in this instrument.
With respect to question 3 above, the language is perfectly clear that a majority in number of those who are entitled to receive income from the trust estate must agree to such investments. This means that anyone who directly receives any of the income from the trust estate had such right and this would include Mrs. Wade as long as she was a direct beneficiary of income from the corpus of the estate.
A journal entry may be prepared in accordance herewith.