Kosanovich raised a separate issue concerning the Indiana Motor Vehicle Safety — Responsibility and Driver Improvement Act, Ind. Code § 9-2-1-5(c) (Burns Repl. 1980), but it is not under consideration on this petition to transfer. Miller v. Dilts, (1983) Ind. App., 453 N.E.2d 299, comes to us from the Court of Appeals, Fourth District, as Cause No. 4-183 A 27. The opinion was handed down on August 31, 1983.
The October 3 authorization was a permissive grant to consider the matter of sale of the property. See Brown v. Mead, 121 Conn. 1, 18, 183 A. 27 (1936). Contrary to the plaintiff's request, we will not read the words used as a limitation on the manner in which the sale was to be carried out.
" State v. Hendrix, 59 Ariz. 184, 124 P.2d 768, 771; Calder v. Curry, 17 R. I. 610, 615, 24 A. 103, 105; 15 C.J.S., Compel, p. 650, note 48. There are various other definitions given, but we think these are peculiarly applicable in the sense, and on the circumstances, under which the word is used in the instrument. In Brown v. Mead, 121 Conn. 1, 183 A. 27, the court held that the words "I direct" as used in a trust was to express the general duty to be imposed upon the trustees with reference to the payment of yearly sums of money. The word "direct" implies the exercise of power and authority; and has been said to connote a mandate.
The trustees under Trusts "F" and "G" were vested with discretion as to the use of funds for the support, comfort and education of the minor respondents. Jaretzki v. Strong, 98 Conn. 357, 119 A. 353; Whilden v. Whilden, Riley Eq. 205; 12 S.C. Eq. 205; Hull v. Holloway, 58 Conn. 210, 20 A. 445; Brown v. Mead, 121 Conn. 1, 183 A. 27. Where the trustees are also the settlors, the courts should not interfere with the exercise of their discretion where the trustees have not been guilty of bad faith, fraud, or where they have not failed to observe the principles of fair play. Pinckard v. Ledyard, 251 Ala. 648, 38 So.2d 580; Hoglan v. Moore, 219 Ala. 497, 122 So. 824; Peach v. First Nat. Bank, 247 Ala. 463, 25 So.2d 153. The courts owe a duty to minor beneficiaries of a trust estate to conserve it for the beneficiaries upon reaching adulthood and to prevent unnecessary expenditures and inroads upon such estates, as well as a duty to see that the minor beneficiaries are properly maintained and educated. 39 Am.Jur. p. 661; 2 Acott on Trusts; Clarke v. Clarke, 246 Ala. 170, 19 So. 526; Ralls v. Johnson, 200 Ala. 178, 75 So. 926. A trustee must never act for his own interest but in all activities of the trust be guided only by what is to the best interests of the beneficiaries.
In discussing the meaning of the word "authorized", the author, in 7 C.J.S., at page 1294, states: "Ordinarily it is said to be permissive merely, not being on this face mandatory, but being given its natural significance of a grant of power rather than an imposition of a duty, and implying either a discretionary or permissive power". This definition was approved in Brown v. Mead, 121 Conn. 1. 183 Atl. 27. In the instant case there were two matters left to the discretion of the trustee: (1) Was it necessary under the prevailing circumstances to furnish the beneficiary with such "necessities of life," and if so, (2) How much should be taken from the principal for such purpose.
John B. Gage, John F. Reinhardt and F. Philip Kirwan for defendants-appellants The First National Bank of Kansas City, Nannie S. House and John J. Cockrell, Trustees Under the Will of Thomas L. Cockrell, Deceased, John J. Cockrell and M.W. Borders, Jr., Executors of the Estate of Thomas L. Cockrell, Deceased; Gage, Hillix, Shrader Phelps and Margolin Reinhardt of counsel. (1) Testator's last will and testament with codicil contemplate a withholding until the death or remarriage of the widow by the trustees of the net income of the trust estate not distributed to her. Mercantile-Commerce Bank Trust Co. v. Morse, 201 S.W.2d 317; Brown v. Mead, 121 Conn. 1, 183 A. 27; New York Trust Co. v. Murray, 120 N.J. Eq. 494, 186 A. 531; Perry v. Brown, 34 R.I. 504, 83 A. 8. (2) The crucial words of paragraph (b) of Section XI plainly and without ambiguity direct distribution of the accrued, accumulated and undistributed net income of the trust estate upon the death or remarriage of the widow. State v. Hitchcock, 241 Mo. 433, 146 S.W. 40; In re MacManus' Will, 282 N.Y. 420, 26 N.E.2d 960; Titsworth v. Titsworth, 107 N.J. Eq. 436, 152 A. 869; Industrial Trust Co. v. Budlong, 70 R.I. 432, 40 A.2d 585; In re Baldwin's Estate, 69 Cal.App.2d 760, 160 P.2d 124. (3) By elementary principles of law paragraph (b) of Section XI prohibits distribution of any of the net income of the trust estate to the beneficiaries named therein until the death or remarriage of the widow.
The chancery court possessed power to vouchsafe these old ladies full protection against destitution by authorizing utilization of the corpus. Low v. First National Bank Trust Co. of Vicksburg, 162 Miss. 53, 138 So. 586, 80 A.L.R. 112, 116; Compare Reedy v. Johnson's Estate, 200 Miss. 205, 26 So.2d 685, 686; Yeates v. Box, 198 Miss. 602, 22 So.2d 411; Mayes v. Mayes, 133 Miss. 213, 97 So. 548; Pennington v. Metropolitan Museum of Art, supra; Curtis v. Brown, 29 Ill. 201, 228; In re Van Deusen's Estate, Bright v. Bank of America and National Trust Savings Association, supra; Burgess v. Nail, 103 F.2d 37; Adams v. Cook, supra; Trust Co. of New Jersey v. Glunz, 183 A. 27, 30; Simon v. Reilly, 126 N.J. Eq. 546, 10 A.2d 474; Trust Co. of New Jersey v. Greenwood Cemetery, 32 A.2d 519, 524; Brown v. Berry, 71 N.H. 241, 52 A. 870; 65 C.J. 684, Sec. 549; 54 Am. Jur. 224, 227, Sec. 284; Restatement of the Law of Trusts, Sec. 167, p. 415; 3 Bogert, Trusts and Trustees, p. 499. Argued orally by Garner Green, for appellee.
However, if the pertinent passage be taken literally (that is, "... my Trustees shall apply to the use of such grandchild so much of the net income ... as my Trustees shall in their absolute discretion deem advisable....") and as isolated from the remainder of the context in which it appears, the power to withhold applications of income if in response to the exercise of the trustees' sound and honest judgment seems implicit in the authority conferred. Bridgeport v. Reilly, 133 Conn. 31, 37. See Brown v. Mead, 121 Conn. 1, 19. "Where by the terms of the trust a beneficiary is entitled only to so much of the income and principal as the trustee in his uncontrolled discretion, shall see fit to give him, he cannot compel the trustees to pay him or to apply for his use any part of the trust property." 1 Scott, Trusts, p. 774.
Part (b) of paragraph 9 of the substituted complaint raises the question as to whether the provisions of the 9th paragraph of the will are permissive or mandatory. The case of Brown vs. Mead, 121 Conn. 1, is cited as an authority that the words "I also authorize them to invest the trust funds" are to be taken as merely permissive and not mandatory. It should be observed that the context of the two wills is entirely different.