Collins v. Serverson

2 Del. Ch. 324

• Court: Court of Chancery of Delaware
• Decided: September 15, 1864
• Status: Published

Opinion

Harrington, Chancellor.

I am in some doubt whether the complainant has made out a sufficient case of insecurity of the fund to warrant the interposition of the Chancellor on that ground alone. But there has been a failure to execute the trust; and against that the Court will relieve. The trustee is bound to apply the money to the purpose of the trust, i. e., the benefit of Mrs. Collins. It is true that the time and amount of the payments are in the discretion of the trustee, subject to the order of this Coiirt • but to refuse or neglect altogether to pay her is practically to annul the trust. The Court will not permit that. The defendant must do what the will directs, or there must be another trustee. It appears that he has not executed the trust nor commenced to do it. He has neither made any payment to Mrs. Collins, nor deposited the fund in the Orphans Court under the direction of the will.

Let a decree be entered that the defendant pay to the complainant, within thirty days, the accrued interest on the trust fund, or that he deposit the same in the Orphans Court; and that upon default he be removed from the trust; also that he pay the costs.