In support of its position the trustee relies primarily upon the recent decision of the Supreme Court of Minnesota in In re Mayo (1960), 259 Minn. 91, 105 N.W.2d 900, in which such court distinguished, if it did not overrule, its prior decision in In re Trust under Will of Jones, 221 Minn. 524, 22 N.W.2d 633. Additional decisions cited by plaintiff are: Harter Holding Co. v. Perkins (1942), 69 Ohio App. 203; In re Pulitzer's Estate (1931), 249 N. Y. Supp., 87, 139 Misc. 575; Young v. Young (1931), 255 Mich. 173, 237 N.W. 535, 77 A.L.R., 963; Cary v. Cary (1923), 309 Ill. 330, 141 N.E. 156; Citizens Natl. Bank v. Morgan (1947), 94 N. H., 284, 51 A.2d 841, 170 A. L. R., 1215; John A. Creighton Home for Poor Working Girls v. Waltman (1941), 140 Neb. 3, 299 N.W. 261; Morris Community Chest v. Wilentz (1939), 142 N. J. Eq., 580, 3 A.2d 808; Newark Banking Co. v. Osborne (1952), 19 N. J. S., 175, 88 A.2d 229; St. Louis Union Trust Co. v. Ghio (1949), 240 Mo. App., 1033, 222 S.W.2d 556. In the Jones case, it was argued that under a subsequent statutory enactment which authorized trustees to invest trust funds in corporate stocks, and because of changed economic conditions and the prospect of higher income from corporate stocks, the court should authorize the trustees to invest trust funds in the latter.
A court of chancery may modify or amend an existing trust to prevent the impairment of the trust's primary purpose. National Newark Essex Banking Co. v. Osborne, 19 N.J. Super. 175, 183 (App.Div. 1952). The Lambertville National Bank v. Bumster, 141 N.J. Eq. 396, 399 (Ch. 1948).
The trial court's memorandum and order sets forth a clear analysis of the issue in the following statement: Petition of Wolcott, 95 N.H. 23, 56 A.2d 641, 1 A.L.R. 2d 1323; Rogers v. English, 130 Conn. 332, 33 A.2d 540, 147 A.L.R. 812; National Newark Essex Banking Co. v. Osborne, 19 N.J. Super. 175, 88 A.2d 229. See, also, Donnelly v. National Bank of Washington, 27 Wn.2d 622, 179 P.2d 333; In re Estate of Brown, 22 Misc.2d 277, 198 N Y So.2d 888. "If there were no provision for these beneficiaries in the Will, they would receive nothing. If there were no provision in the Will covering investments, the law covering rights and duties of trustees as well as the authority vesting in the courts would take care of this administrative aspect.
See 2 Scott on Trusts, supra, § 164.1, at 1260 ("The terms of the trust are determined by the intention of the settlor at the time of the creation of the trust, and not by his subsequent intention."). And see National Newark and Essex Banking Co. v. Osborne, 19 N.J. Super. 175, 183, 88 A.2d 229 (App.Div. 1952); In re Ebert, 136 N.J. Eq. 123, 127, 40 A.2d 805 (Prerog.Ct. 1945); Magoon v. Cleveland Trust Co., 101 Ohio App. 194, 197-201, 134 N.E.2d 879, 882-83 (1956); Restatement (Second) of Trusts, §§ 4, 164 (1959); 2 Scott on Trusts, supra, § 164, at 1254 and § 164.1, at 1257. The trust instrument in this case establishes clear parameters.