From the provisions of the will here involved, I can not discern an intention on the part of the testator that his Trustees should have authority to sell the testator's stock in Burns Development Company. It seems to me that the authority of the Trustees as to this stock, and particularly the method of the ultimate discharge of the trust with reference thereto, is clearly expressed in the will, no resort to rules of construction being necessary.
In one paragraph of the will, the testator devises to Robson and Dwiggins all of his real property in Marion county, in trust, however, for the testator's wife and two children.
In another paragraph the testator devises his interest in Duson (Deeson?) Island to Dwiggins and Kate C. Spencer, in trust for the benefit of the testator's wife and children.
It will be noticed that the subject matter of these two trusts is land. As to these two trusts the testator confers upon his trustees "full management and control as trustees of said property with full power to manage, sell or dispose of same upon such terms as they may see fit, and with full power to encumber same, * * *". With reference to the trusts in this real property, the testator further directs that "such money as may be derived from the sale or otherwise of said property, after expense of administration is paid, I direct shall be paid one-third to my wife and the remaining two-thirds I direct shall be deposited in some trust company by the trustees at the usual rate of interest, which interest shall be paid to my wife, to aid in the up-bringing of the children, the principal to remain intact, until the said children become twenty-five years of age, when it shall be paid to them." The significance of the latter provision with reference to "the principal" which shall remain intact, will appear later.
The next paragraph in the will refers to personal property, *Page 556 namely, the testator's stock in Spencer-Futch Company, with reference to which, and with reference to the future conduct and management of the affairs of which company, the testator gives detailed directions. This stock is bequeathed to Dwiggins and Kate C. Spencer as joint trustees "with all power to vote said stock at any called, special or regular meeting, said voting power to be joint." It is significant that no power to sell this stock is given the trustees. The testator directs that "all dividends from said stock (in the Spencer-Futch Company) shall be applied, first, to the maintenance, care and education of said children (testator's children) by the guardian thereof hereinafter named, and the remainder, if any, deposited by the trustees to be turned over to them as each becomes twenty-five years of age."
Then follows the paragraph now in litigation, which concerns testator's stock in Burns Development Company. It will be noted that the testator also left certain directions with reference to the future management of this corporation. This stock the testator bequeathed to Dwiggins and Trantham "in trust for my wife and two children, with full power to vote the said stock. It is my desire that after the completion of the sale of Lakewood Park and Golfside (apparently two subdivisions being marketed by Burns Development Company) that the corporation be discontinued. 'I direct my said trustees to fully protect my interests.' I am entitled to credit of $2,300.00 on the books of the company. I direct that as any money or income is received by said trustees that it be divided one-third to my wife and the remainder be deposited in some trust company and the income paid to the guardian for care of children, principal to be given to them as each becomes twenty-five. Of course, if the income from the sources above named are not sufficient to care for my children, *Page 557 the trustees may in their discretion allow guardian a larger amount, even of the principal."
To me it is significant that although this testator, when dealing with his lands, expressly and specifically gave his trustees the broadest and most comprehensive of powers, including the specific power to sell, that in the two ensuing paragraphs dealing with stocks in two corporations in each of which the testator owned a half interest, that is, one-half the capital stock, the will contains no specific power of sale. On the contrary, it appears that the testator was leaving directions as to the future management and conduct of the affairs of these corporations after the testator's death, all of which indicates to me that the testator desired his trustees to hold the stock so that the beneficiaries of the trust, namely, his wife and children, would share in the fortunes of the ventures of these corporations, be they good or bad, until the enterprises in which the Burns Development Company was then engaged, were concluded, and apparently indefinitely with reference to the business of the Spencer-Futch Company. As stated, the business of the Burns Development Company was apparently the marketing of at least two real estate subdivisions. This will was executed on February 18, 1924, which date, as the Court knows, was about the threshold of an era of great appreciation in real estate prices from which large profits to sellers would apparently follow. With reference to the Burns Development Company, the testator provided that "after the completion of the sale of Lakewood Park and Golfside that the corporation be discontinued." This particular provision is not consistent, in my opinion, with an intention on the part of the testator that his trustees should have power to sell his stock in that corporation, but indicates to me that the testator intended that this stock should be retained so that the *Page 558 beneficiaries of the trust might share in what the testator at that time no doubt anticipated would be substantial profits. If this testator intended that his trustees might sell this stock, what interest would the testator have in the ultimate dissolution of the corporation? Immediately following the testator's direction that after the subdivisions were sold out, the corporation should be "discontinued" is found in the sentences: "I direct my said trustees to fully protect my interests. I am entitled to a credit of $2,300.00 on the books of the company." This provision added nothing to the force of the will. It is always the duty of a trustee to fully protect the interests of the cestuis que trustent. It can not, however, be construed as authority to depart from the intention of the testator. Considering the context in which it is found, the directions to the trustees "to fully protect the testator's interests" more appropriately refers to the winding up of the affairs of the corporation, which the testator by the immediately preceding provision of the will directs shall occur at a stated time, and to the immediately following statement by the testator that he is entitled to a credit of $2,300.00 on the books of the company. It seems to me that it is with reference to the winding up of the corporation and securing of the proper credits to the testator, that the trustees are directed to fully protect the testator's interest. In the striking absence of any specific, or clearly implied, authority to sell the stock, I think that the mere direction to the trustees to protect the testator's interest is insufficient as an authority to sell, particularly when the remainder of the paragraph, and the context in which is found the sentence in question, is considered. To hold that the testator's direction to his trustees "to fully protect his interests" authorizes the trustees to sell his stock, although there is no specific authority to sell, as was the *Page 559 case with respect to the testator's real estate, is to place too broad a construction upon that isolated and indefinite sentence in the will.
The testator conferred on his trustees "full power to vote the said stock" and stopped, although those paragraphs of the will referring to his real property showed clearly that the testator had in mind certain of his property with reference to which he desired to clothe the trustees with power to sell. Instead, however, of following the authority to the trustees to vote the stock with a power to sell or dispose of the same, which would have been most appropriate at that place had the testator intended to confer such authority, the testator at that point provides it is my desire "that after the completion of the sale of Lakewood Park and Golfside that the corporation be discontinued," thereby clearly indicating the method by which he desired the trust terminated, that is, that the corporation should be "discontinued" after completing the sale of Lakewood Park and Golfside. This thought and direction to the trustees — that the trustees should fully protect the testator's interest — seems to me to have occurred to the testator in connection with his immediately preceding directions to wind up the affairs of the corporation at a stated time. There being no specific authority to sell, and the testator having indicated the method by which he desired his trustees to ultimately discharge this trust, I regard the direction to the trustees to protect his interests as insufficient, standing alone, upon which to base authority to sell. The fact that developments in the real estate situation subsequent to the testator's death might render the attempted sale by the trustees beneficial to the cestuis que trustent, is not in itself a sufficient basis for inferring a power of sale. Though the trustees may have acted in the utmost good faith, and to the best *Page 560 interest of the beneficiaries, the testator's directions must control, otherwise the judgment of the trustees would be substituted for the intention of the testator, which is not permissible unless the testator has clothed the trustees with direction in the matter, and which it seems to me he has not done in this case with reference to the stock in Burns Development Company.
This situation does not seem to me to fall within the cases cited by appellants in which the words "divide," "invest" or "manage" an estate, or like words, have been construed to imply an authority to sell. These cases do not apply because as I read this will there is no direction or authority to "divide" the subject matter of the trust, at least until the corporation is wound up in which event there still would be no necessity for a sale of the stock. Nor is there any direction to "invest" or "manage" the subject matter of the trust, the stock. The trustees merely acquire the legal title in trust and are directed that "as any money or income is received" to divide the same as directed. There their authority ends. Nor does this case fall within those cases cited by appellant in which a plain authority to sell found in one part of a will is construed to apply to property thereafter mentioned in the will. The latter cases do not apply because the general arrangement, context, and theory of this will indicate to me a contrary intention on the part of the testator.
The paragraph under consideration contains the provision, "Of course, if the income from the source above named are not sufficient to care for my children the trustees may in their discretion allow guardian a larger amount, even of theprincipal." Appellants contend that the word "principal" refers to the stock in the hands of the trustees and that there would be no way to "allow" the beneficiaries any portion of the stock without selling it, *Page 561 from which it is contended an implied authority to sell arises. The word "principal" in the sentence last quoted does not refer to the stock itself, which is the subject matter of the trust. It will be recalled that the testator provided that moneys arising from the sale of real estate should be paid one-third to testator's wife, and the remaining two-thirds should be deposited in a trust company at the usual rate of interest, which interest should be paid to testator's wife to aid in the up-bringing of the children, the principal to remain intact until the children are twenty-five years of age. Now the testator in the paragraph referring to his stock in Burns Development Company, provides that "any money or income" received by the trustees from said stock shall be disposed of in exactly the same way, that is, one-third to testator's wife and the remainder to be deposited in a trust company and the income paid to the guardian for the care of his children. It is then that the testator provides that if the income from the sources "above named" are not sufficient to care for his children, the trustees may in their discretion allow the guardian a larger amount, even of the principal. The "principal" so referred to obviously is not the stock itself in the Burns Development Company, which is the subject matter of the trust, but is the principal of the moneys to be deposited in a trust company by the trustees from funds derived from said stock, from the dividends or other income thereon, and from the real estate, the interest upon all of which is to be devoted to the up-bringing of the children, and the "principal" of which is to remain intact until the children are twenty-five. It is that "principal" the trustees are authorized to invade if necessary, and not a sale of the stock which is the subject matter of the trust, that the testator had in mind in the latter part of the paragraph under consideration when he authorized the trustees *Page 562 in their discretion to allow the guardian a large amount, even of the "principal," to care for testator's children. The result of this construction would be that the trustees are authorized to allow the children the whole of their two-thirds of the dividends from this stock and proceeds of the real estate, if necessary.
I am therefore of the opinion that the order overruling the demurrer to the bill should be affirmed.
TERRELL, C. J., AND ELLIS, J., concur.