This is a petition by the trustee to the court which already has assumed jurisdiction of the execution of the trust. It is said in Perry on Trusts, section 511: "If the administration of the trust is thus rightfully brought within the jurisdiction of the court, the power (discretionary) may be required to be exercised under the eye of the court, though the exercise of it must still remain in the discretion of the trustee, and not of the court."
We would not say that the court should delay the exercise of the judgment of the trustee as set out in the instant case until effectual notice can be given to the foreign legatees, since it is but a proceeding in the orderly course of administering a trust already in equity, in which notice to them is not contemplated by the will nor required by law. And while "it is always a question for the courts to determine whether action of the trustees in a given case is within the discretionary powers given them by the instrument of trust," Perry on Trust, section 508, the courts will not exercise that power so as to cut off designated legatees under a will without giving them an opportunity to be adequately heard. The Act of Congress and decision of the Supreme Court of the United States, cited supra, are clear to the effect that when there is a complete absence of intercourse between residents of this Country and the one at war with us, in which the interested parties are supposed to have their residence, no court action affecting their rights should be taken until it may become possible for the foreign persons to present their claim adequately. They are not here fully represented. There is no provision of law for a guardian ad litem for them. His appointment is based on a possibility that there may be minors or insane persons interested. There is no authority for such assumption. He does not in truth represent them, and neither does the alien property custodian fully do so. He is not possessed of the necessary information. They are not completely and adequately represented.
But the argument is made that the award of the trustee is conclusive to cut them out, and they need no representation. If so, there is no need of a decree of a court of equity to that effect. The fact that a decree is sought implies a necessity for an opportunity to defend.
Ordinarily when the trustee seeks guidance and instruction from the court as to his duty under the terms of the trust instrument, equity will take jurisdiction because such instrument is ambiguous and uncertain in its meaning, or difficult and embarrassing in its interpretation. Sellers v. Sellers, 35 Ala. 235; Gilmer v. Gilmer, 245 Ala. 450,17 So.2d 529; Carroll v. Richardson, 87 Ala. 605, 6 So. 342, and others cited in the Gilmer case.
If it is clear and precise with no uncertainty, the court will not as a rule take the trouble to say so in the exercise of its jurisdiction, unless an actual controversy exists between adverse claimants as to it. If the mere exercise by the trustee of its discretion is sufficient to exclude them, without court action, then court action should not be asked in the absence of an actual controversy. If it is asked of the court, it can only be granted when there is ground for a controversy in that respect, or one actually exists. If there is such, then under the decision cited of the United States Supreme Court, supra, the alien residents in enemy territory should have a chance to be adequately represented. If there is not, then no decree ought to be rendered on that aspect of the bill. Since that is asked of the *Page 501 court, its hearing ought to be delayed until notice to the foreign legatees means something more than form. That is all we have here directed, and we adhere to that conclusion.
Application overruled.
GARDNER, C. J., and THOMAS and LIVINGSTON, JJ., concur.