Plaintiff was one of twelve children and devisees of Jeremiah B. Smith, deceased. By the residuary clause of her father’s will each of his children was entitled to one twelfth of his estate less certain discounts. With reference to the portion of plaintiff, the will uses the following language:
*450“And as to the other share, which would descend to my daughter, Nancy B. Smith, the wife of William Smith, who is now past forty-five years of age, and has never borne any children, and is now childless, I give and bequeath the said share of one twelfth to William D. Butler, in trust, however, for the use, benefit and enjoyment of my said daughter, Nancy B. Smith, during the term of her natural life, in manner as follows: I direct that the said trustee, Wm. D. Butler, shall control and manage, and make investments of the said share of my estate the annual interest and proceeds of which said investments said trustee is to pay over to my said daughter, less the necessary expense attending said trust, including a reasonable compensation to said trustee for his trouble in managing said interest of my said daughter. At the death of my said daughter, Nancy B. Smith, said bequest and the trust last above created to become void and the said share to become a part of my estate and to be administered and distributed to my heirs at law as such.”
After the death of the testator, the trustee named in the above clause of the will resigned, and S. S. Bassett was duly appointed in his stead. Plaintiff procured an assignment executed by seven of the children of the testator of all their interest in the portion of the estate devised to her, and thereupon moved the court to direct the trustee to pay over a proportion of the funds held by him as such equal to the interest of said parties, or seven elevenths of the whole. Upon a hearing the court sustained plaintiff’s proceeding, and decreed accordingly that the trustee pay over to her seven elevenths of $2,617.80, the amount then in his hands, and the same proportion of what might thereafter come into his hands as trustee from the administration of the testator’s estate. The heirs of the estate were made defendants, and appealed from said judgment.
*451^suteTcoLtnictlon' The first error assigned is, that the trust in question is an active one, and that a court of equity will not decree its extinguishment in whole or part except by the consent of all the parties in interest. This position is correct.
The trust under review makes it the duty of the trustee to control, manage and invest the estate devised to him, and imposes other duties on his part to continue during the life of the cestui que trust. It was evidently created for the purpose of preventing the corpus of the estate from being subject to the dangers which might beset it in the hands of the wife and to remove it from the reach of her husband, as well as to preserve it for the heirs at law of the testator. To permit its cessation prior to the period fixed for its termination, would thwart the intent of the donor. Equity will not lend its aid to that object. The signers to the assignment read in evidence do not constitute all the parties interested in the trust estate. The rule on this subject is, that “a trust once created and accepted without reservation of power, can only be revoked by the full consent of all parties in interest. If any of the parties are not in being, it can not be revoked at all.” 1 Perry on Trusts [4 Ed.], section 104; Ewing v. Shannahan, 113 Mo. loc. cit. 196. Under this rule there can not be a partial extinction of an active trust by the act of part, only, of the parties interested. Conceding that under the testator’s will a present fixed right of enjoyment, upon the expiration of the trust estate, was vested in his heirs at law at the time of his death, still, as all of them did not consent to the termination of the trust, it was not abrogated. These conclusions demonstrate that plaintiff is not entitled to recover in this action. The judgment will therefore be reversed.
Judge Bland concurs. Judge Biggs dissents.