They are not all now ascertained or ascertainable, and there is no reason to invalidate the class gift of income. See Allen v. First Nat'l Bank Trust Co., 319 Mass. 693, 697 (1946). We are now in a position to discuss the question whether the class gift of income to grandchildren calls for the payment of income equally to those grandchildren living from time to time (as joint tenants with rights of survivorship) or whether the issue of any deceased grandchild succeeds by right of representation to his income interest.

Additionally, it is significant that even the more broadly expressed discretion in the trustees or their successors to pay principal "if they deem it wise" applies only to one-half of the trust property. This limitation suggests that the testatrix intended the trust to continue throughout Charles's life. Allen v. First Natl. Bank Trust Co. 319 Mass. 693, 696 (1946). Thus, we believe that all the purposes of the trust have not been achieved so as to compel its termination.

From what we have said it is apparent that this statement was not necessary to uphold that agreement. The respondent relies upon Allen v. First Natl. Bank Trust Co. 319 Mass. 693. It is a sufficient distinction of that case for present purposes to indicate that no compromise agreement was there concerned and the only question related to the power of the beneficiary to require termination of the trust.

Whitney v. Whitney, 317 Mass. 253, 257, 57 N.E.2d 913, 915. See also Allen v. First National Bank Trust Co., 319 Mass. 693, 67 N.E.2d 472, 473; Springfield Safe Deposit Trust Co. v. Stoop, 326 Mass. 363, 95 N.E.2d 161, 163; Hamilton v. Robinson, 236 Mo. App. 289, 151 S.W.2d 504, 508; Fidelity Union Trust Co. v. Margetts, 7 N.J. 556, 82 A.2d 191, 197, 199; Baer v. Fidelity Union Trust Co., 132 N.J. Eq. 333, 28 A.2d 275, 277; Brown v. Fidelity Union Trust Co., 128 N.J. Eq. 197, 15 A.2d 788, 792; In re Estate of Cannistra, 384 Pa. 605, 121 A.2d 157, 163, 164; Feiler v. Feiler, 149 Ohio St. 17, 77 N.E.2d 237. For a historical study regarding the right of termination of a testamentary trust attention is called to Speth v. Speth, 8 N.J. Super. 587, 74 A.2d 344.

Whitney v. Whitney, 317 Mass. 253, 257, and cases cited. Allen v. First National Bank Trust Co. 319 Mass. 693. Mesce v. Gradone, 1 N.J. 159, 165-166. Restatement: Trusts, § 337. Scott, Trusts, § 337. 123 A.L.R. 1427. 163 A.L.R. 852. 54 Am. Jur., Trusts, § 75. The not uncommon difficulty is in their application.

Whitney v. Whitney, 317 Mass. 253, 257. Allen v. First National Bank Trust Co. 319 Mass. 693, 695. Restatement: Trusts, § 337 (2). "The only safe generalization is that termination in whole or in part has been ordered where such termination would best accomplish the testator's intent."

See Bleck v. East Boston Co. 302 Mass. 127. See Sears v. Choate, 146 Mass. 395, 397-398; Ames v. Hall, 313 Mass. 33, 37; Whitney v. Whitney, 317 Mass. 253, 257; Allen v. First National Bank Trust Co. 319 Mass. 693, 696-697. The decree entered by the judge adjudging that the defendant holds the property in question as trustee for herself and "John J. Ryan as administrator of the estate of Florence L. Ryan," and ordering the defendant to convey one undivided half interest in the real estate involved to "John J. Ryan as administrator of the estate of Florence L. Ryan," is erroneous.

"[I]t is settled that where the testator has fixed the time for the termination of the trust, and where it is active and its purposes and objects have not been fully accomplished and its termination would not best accomplish the testator's intent, the trust cannot be terminated. . . ." Allen v. First Natl. Bank Trust Co., 319 Mass. 693, 695-696 (1946), quoting from Whitney v. Whitney, 317 Mass. 253, 257 (1944). 3 Newhall, Settlement of Estates and Fiduciary Law in Massachusetts § 36:33 (Belknap 5th ed. 1998).

Relying on established trust principles, the Schultz defendants correctly state that Martin Schultz cannot terminate the trust, even by agreement with Marilyn Adler, if continuance is necessary to carry out trust purpose. See Allen v. First Nat'l Bank Trust Co., 319 Mass. 69.3 (1946) (trust cannot be terminated if all its objects and purposes have not been accomplished, notwithstanding that all parties beneficially interested desire its termination). Until Marilyn Adler dies, this purpose is not accomplished.