Opinion
01-06-1936
CAMDEN SAFE DEPOSIT & TRUST CO. et al. v. JONES et al.
Frank S. Norcross, of Camden, for complainants. Bleakly, Stockwell & Burling, of Camden, for defendants.
Syllabus by the Court.
Where a complete trust is created by one paragraph of a will, vesting title to the trust property in a trustee specifically named, and a later provision of the will nominates that trustee and another person as "executors and trustees," held, that the later provision is inoperative to do more than vest in that other person the powers of an executor.
Suit by the Camden Safe Deposit & Trust Company and another, executors under the last will and testament of Mary Esther Frailey, deceased, against Molly P. Jones and others. On bill, etc. On final hearing.
Decree in accordance with opinion.
Frank S. Norcross, of Camden, for complainants.
Bleakly, Stockwell & Burling, of Camden, for defendants.
DAVIS, Vice Chancellor.
The bill is filed for the construction of the will of Mary Esther Frailey, who diedDecember 30, 1932, and whose will is dated August 2, 1932, and admitted to probate by the surrogate of Camden county on March 11, 1933. The part of the will which calls for construction relates to the question of whether the Camden Safe Deposit & Trust Company is sole trustee, or cotrustee with Howard Douglas Campbell, to administer the trust set up in paragraph 3 of the will. Under this paragraph the residuary estate is given to the trust company, its successors and assigns, in trust for the purposes set forth in said paragraph, with full power to administer the same as directed therein. Under the last paragraph of the will, testatrix appoints the trust company, its successors and assigns, and testatrix's brother-in-law, Howard Douglas Campbell, and the survivor of them, executors and trustees under the will. Letters testamentary were granted to these two executors, who have proceeded to administer the estate and file an account.
By said third paragraph the residuary estate is vested in the trust company as trustee, and I have concluded that the trust company is the sole trustee; the language of the last paragraph of the will appointing the trust company and Campbell as executors and trustees does not warrant a construction that Campbell becomes cotrustee with the trust company of the residuary estate. The testatrix, in the first paragraph of the will, directed her "executor hereinafter named" to pay just debts, etc., and while she named two executors by the last paragraph, she did not, by any language in the third paragraph creating the trust and vesting title to the trust property in a trustee specifically named, leave the way open to introduce an additional trustee to the legal title to the trust funds, nor refer in any way to a trustee to be thereinafter named; therefore the only powers given Campbell are those of a coexecutor.
In the English case of Sidebotham v. Watson, 11 Hare, 170, 45 Eng.Ch. 170, 68 Eng. Reprint, 1234, a similar situation arose under a will. There the testator devised property to trustees under particular trusts and later on in the will designated an additional person as trustee. The court said, in disposing of that question: "With regard to the last question, on the trusteeship, the gift of the property is made to the two trustees, Sidebotham and Royle, and the gift is very distinctly carried out by vesting the powers in them and the survivor. The subsequent appointment of the wife as executrix and trustee of the will does not introduce her as a trustee of the specific trusts previously imposed on the two trustees whom the testator had nominated. The wife has only those powers and trusts which ordinarily attach to the office of executrix."
The Camden Safe Deposit & Trust Company will be decreed to be sole trustee of the residuary estate under the terms of the will.