The question is, whether the trustees under the will of the late Amos D. Smith had power, more than ten years after his death, to sell and convey a portion of the trust property. The purpose of the trust, as declared by the testator, was to have the trust property used to give credit and pecuniary aid to a partnership of which he was a member, and to three manufacturing corporations in which he was a stockholder, in order that they should not suffer by the loss of his indorsement and guaranty and personal liability. Accordingly, the property was put in trust to be used to pay, secure, or extend the debts and liabilities outstanding against him at his decease, and as a basis of credit for the creation of new debts and liabilities by the trustees to take the place of them; unlimited power to sell and convey, mortgage or pledge, the property discharged of the trust being conferred upon them, and also a variety of incidental powers for its management and improvement. The language of the clause in which the trust is declared is exceedingly involved, complicated, and in some respects difficult to understand, from lack of clearness and completeness of declaration. It is provided that the trust "may continue for the period of ten years from the time of my, the testator's decease, and no longer." The contention is, that the sale of the city of Providence, having been made after the ten years expired, was invalid. There are two considerations that make strongly against this view. One is, that the trustees have authority to go on renewing their liabilities and incurring new ones on the credit of the property and in the full exercise of all *Page 257 the powers given them for that purpose, until the expiration of the ten years; and if instantly at the expiration of that period the trust and all their powers as trustees determine, both their own interests and the interests of the creditors will be very ineffectually protected. It is not easy to believe that this was intended. But, again, it is provided that, upon the termination of the trust, the property shall be distributed and divided, and that the trustees shall convey the same discharged of said trust, as the same is devised and bequeathed in the will. But how can the trustees convey it "discharged of said trust," that is, of all liabilities attaching to it under the trust, unless the trustees have power to raise money for the payment of such of them as continue unpaid after the ten years have expired. It seems to us that the more reasonable construction is, that the ten years were allowed for the continuance of the trust for the purposes for which it was created; namely, to give credit and pecuniary aid to the partnership and the corporations, and no longer for that purpose, but that by necessary intendment the trust must continue with the powers necessary for the winding up of its affairs and the discharging of the property, so that it may be conveyed "discharged of said trust" to the devisees and legatees entitled under the will to have it so conveyed to them. In other words, we think that the word "trust" in the provision for its termination was used to signify the trust as a contrivance for giving aid and credit to the concerns aforesaid, and that in that sense the trust and the powers of the trustees were to terminate.
We are free to say, however, that in giving this construction we do so with so much doubt that we hesitate to commit ourselves to it as final at this initial stage of the trial; seeing that there are parties who have not yet been heard, and that subsequent proceedings may bring light which may modify our opinion. We will, therefore, pursue in this case the course pursued in regard to the somewhat similar matter in Lynch v.Briggs, now pending in this court, that is to say, we will overrule the demurrer without prejudice to the city, but at the same time reserve our final conclusion until after further hearing.
Demurrer overruled without prejudice.
The city of Providence, one of the respondents, after its demurrer *Page 258 had been overruled, filed a plea, which the complainants set down for argument.
November 28, 1891.