Moss v. Axford


Procedural: Suit by Sarah Moss and another against Henry W. Axford, as executor of the last will and testament of Caroline M. Girard, deceased, and another. From the decree, plaintiffs appeal. Affirmed.

Facts: The decedent, Caroline M. Girard, left a will which devised the residue of her estate to "Henry W. Axford with the instructions to pay the same to the person who has given me the best care in my declining years and who in his opinion is the most worthy of my said property." The decedent's sisters (Ps) bring a bill to construe this provisionof the will, contending that the clause is an invalid attempt to create an express trust because there was no beneficiary fully expressed and clearly defined upon the face of the will. The lower court dismissed the bill of complaint, holding the provision valid. Ps appeal.

Issue: If by extrinsic evidence a court can identify the beneficiary of a trust provision to give effect to the intention of the testator, will the provision be sustained?

Rule: Trustee of testamentary trust, directed to appoint legatee, must exercise good faith, and honesty of decision is reviewable in equity.

Analysis: Here, while the words used in the clause are precatory, the intent of the testatrix in Ihc disposition of the residue of her property lo the person who cared for her is manifest, and the language is mandatory in effect. A trust is not invalidated by the fact that the trustee is vested with discretion, if the exercise of the discre¬tion given to him is imperative and not optional. Here, the ascertainment of the testatrix's beneficiary by Mr. Axford was an imperative duty. The test and method were prescribed by the will. He was bound to exercise good faith, and the honesty of his decision would be reviewable in equity.
Ps further contend thai the devise was void because it suspended Ihc absolute power of alienation from the death of the testatrix until the trustee should make designation of a beneficiary, a period not measured by lives in being under the Rule Against Perpetuities. We disagree. The beneficiary, whoever it might be. was in being, and she and the trustee could have conveyed an absolute fee at any time.