Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-12

out any Limitation over, upon mar
riages; yet, If the attainment Of such
age, or the arrival or occurrence OF
such event or time does not form
part Of the original description OF
the devisee or legatee, and the sus-
pensiye expressions are of such a
nature that they may be construed
to refer, not to the vesting in right
or interest, but to the vesting in pos
session or enjoyment; and it appears
from the form of the limitation, when
more closely considered, or from the
intermediate disposition of the prop
erty, or from other passages, to be
probable, that it was only intended
to delay the vesting in possession or
enjoyment; in such case, the suspen-
sive expressions will be referred to
the vesting in possession or enjoy
ment, and the interest of the devisee
or legatee will be actually vested in
right befor e the age or period speci-
fed" Sec. 3O9.
A concrete example of the above
rule is found in Jackson V. Jackson
Yes. Sen. 217. In this case a ia
ther bequeathed 400 pounds to his
son to be paid to him at the end of
one year after the testator's death,
and a further sum of 100 pounds to
be paid at the death of his mother.
The son died before the mother. The
court held that he took a vested in
terest in the 100 pounds stating that
the legacy was plainly vested and
the time of payment was postponed.
To like effect is Sydney v. Vaughan,
8 Bro. Parl. Ca. 254; Bolger V. Mack
ell, Yes, 500; Provencheres APP
peal, 81 Pa. St. 1853; Eldridge v. Ell
bridge, 0 Cush. SIG.
So in the case at bar it is evident
that it was the intent of the grantor
to convey a present equitable estate
but to postpone the enjoyment of
the corpus until time and experience
had rendered it probable that his
son would preserve it. The deed is
susceptible of no other reasonable
construction. 1t is claimed that this
Is spendthrift trust and that no
equitable title passed to the cestui
que trust. But to so hold we would,
in our judgment, construe away the
plain intent which we gather from
the deed itself. In all the cases cited
by counsel, relating to spendthrift
trusts, we have not found one in
which the ultimate title to the cor
pus of the trust in any event or at
any age was to pass to the cestui
que trust, ant while we are not pre-
pared to say that in no instance can
spendthrift trust exist where the
estate may finally vest in the cestui
que trust, the rarity of such in
stances furnishes strong presump-
tion that a trust terminable at a
particular date or upon the happen
! ing of a particular event is not a
spendthrift trust We do not think
the words in the habendum, provid-
ing that, upon the beneficiary attain
ing the age Of 35 years, the trust
shall cease and all property con-
veyed vest absolutely in him, de-
monishes the equitable estate men,
toned in the grant Its effect was
to limit the duration of the trust and
to pass the whole legal title to the
beneficiary without further convey
ance, and was cumulative to the
original grant.
Based upon these considerations,
we hold, therefore, that upon the
death of James Edsall Rutherford
the trust ceased and that his estate
passed to his heirs at law subject to
the rights of the administrator,
Another question which arises is
upon the claim of the trustee for
compensation. There is an allega-
ton in the answer that he cared for
the property, collected rents, paid
taxes and generally performed every
act necessary for the proper protec-
tion of the trust estate. There is no
allegation as to the value of such
services, but it is evident from the
testimony that they consumed much
time and involved considerable re-
sponsibility and in his accounting he
has made a claim for such compen-
sation. 1t is urged that his failure
to promptly turn over the estate to
the administrator should deprive him
of the right to claim compensation.
But in view of the fact that able
counsel have differed as to the prop
er construction of the conveyance at
bar We think that perhaps it was
only prudence on his part to await
the judgment of the court before
parting with the possession of the
property of the estate. There is
nothing in these proceedings to indl-
cate bad faith or misapplication of
funds on the part of the trustee.
That he did not sunnlY his cestni que