Opinion
3 Div. 386.
June 12, 1919.
Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.
Tilley Elmore, of Montgomery, for appellant.
Hill, Hill, Whiting Thomas, of Montgomery, for appellee.
Courts of equity adhere zealously to the maxim that trusts are not to be allowed to fail for want of a trustee. Blakeney v. Du Bose, 167 Ala. 627, 52 So. 746; Whitehead v. Whitehead, 142 Ala. 165, 37 So. 929; 2 Perry on Trusts, §§ 510, 513.
The learned trial court was in error in holding that the death of the trustee, J. T. Letcher, terminated the trust estates created by items 4 and 5 of the will, and defeated the remainders attached thereto. The personal and discretionary powers of the trustee, founded in confidence and trust, will not pass to a substituted trustee; but those powers and duties which demand for their exercise no personal judgment or discretion are held to be attached to the office, and, upon the death or removal of the testamentary trustee, may be executed by an appointee of the court. Hinson v. Williamson, 74 Ala. 180; Weiland v. Townsend, 33 N.J. Eq. 395; Whitaker v. McDowell, 82 Conn. 195, 72 A. 938, 16 Ann. Cas. 324, and note, 325-332; 21 R.C.L. 789, § 20.
And even where the trustee's powers are entirely discretionary and personal, "the court will not suffer the trust to fail for want of a trustee, and it will therefore appoint a successor, substituting equitable rules in the place of arbitrary power." Weiland v. Townsend, 33 N.J. Eq. 395; 2 Perry on Trusts, § 513.
We think it is clear that the trusts vested in the testamentary trustee by items 4 and 5 of the will must survive, and that a new trustee should be appointed to hold and administer the trusts by caring for the estates, and collecting and applying the incomes as directed. Edwards v. Edwards, 142 Ala. 267, 39 So. 82. But it is also clear that the power "to use the principal," as declared in those items, is personal and discretionary, and can be exercised only under the authority of the court, duly sought and obtained.
The powers granted to the trustee by item 6 of the will are also discretionary, and manifestly founded upon personal trust and confidence, and cannot be exercised by a successor.
The powers of sale and division granted to the executor in item 7 are of the same character and cannot be exercised by the administratrix c. t. a. de bonis non. Robinson v. Allison, 74 Ala. 254, 258. It results, of course, that the agreement of the several beneficiaries under the will for an appraisal of the properties of the estate, looking to such a sale and division, was rendered abortive and of no effect by the premature death of the testamentary executor.
As to the several discretionary powers above referred to, the rulings of the trial court were correct.
There was error, however, in holding that the estate in remainder of J. T. Letcher is subject to dower in favor of his surviving widow, as against the right of the posthumous child, to whom, as correctly held, the estate descended in derogation of the will devising it to the widow. Dower attaches to legal estates only when the husband has been beneficially seized of them in possession at some time during coverture. It does not attach to estates in remainder or reversion. King v. King, 61 Ala. 479, 481; Steele v. Brown, 70 Ala. 235; Code 1907, § 3812. In this respect our statute has not changed the common law. 14 Cyc. 891, 892.
The decree of the circuit court will be reversed and remanded for correction in the two particulars pointed out, and in all other respects it will be affirmed.
Reversed and remanded in part for correction in accordance with this opinion, and affirmed in part.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.