Alexander v. Zion's Savings Bank & Trust Co.

287 P.2d 665, 4 Utah 2d 90, 1955 Utah LEXIS 183

• Court: Utah Supreme Court
• Decided: September 21, 1955
• Docket: 8042
• Status: Published

Opinions

HENRIOD, Justice.

We affirm our opinion in our former case, 2 Utah 2d 317, 273 P.2d 173, 174. In doing so we need not repeat what we said before but address ourselves only to matters contained in the dissenting opinion about which we are constrained to comment. The dissenting opinion concerns itself mostly with the conceded proposition that a power of revocation or control will not invalidate a trust. Our former opinion had no quarrel with such basic principle, and neither does this. But that is not the question in this case. The question is whether or not the instrument provides for a vesting of the cestuis’ interest only after the settlor’s death, not whether the settlor could revoke the trust. How the dissenting opinion possibly can review the language of the paragraph quoted in our former opinion, around which this controversy revolves, to conclude that a present vested interest in the beneficiaries was created, is difficult to understand. The language is clear, unambiguous and unequivocal that “ ‘The * * * interests of beneficiaries * * * created hereby shall in no case vest * * * until they * * * become entitled to receive and demand * * * the income or principal of the said Trust Fund’ ”, (all of which, according to the other clear and unambiguous language of the agreement was to occur after the settlors’ deaths). As if the parties may have anticipated that such a strained construction as the dissenting opinion has placed on the clear language of the instrument might be indulged, the settlors went ahead and dispelled any such doubts about the matter by adding that the “beneficiaries shall have no * * * interest in said Trust Fund except as herein provided” (after settlors’ death). To say such language vests an interest in the cestuis in praesenti seems to ignore the language itself.

The dissent can find no solace in its statement that “Several times in this provision (Par. 5) it refers to the interests of the beneficiaries in the present tense.” A cursory examination of the paragraph does not bear out this assertion, and furthermore there is no reference to any present interest in the beneficiaries.

CROCKETT and WORTHEN, JJ., concur.