Gaskill v. Gaskill

7 R.I. 478

• Court: Supreme Court of Rhode Island
• Decided: September 6, 1863
• Status: Published

Opinion

Bratton, J.

Lebbeus Graskill, late of Cumberland, in the county of Providence, deceased, in and by his last will and testament, which was duly proved in the Court of Probate of the said 'town of Cumberland, holden on the second day of March, 1863, gave and bequeathed to his son, Warren Gaskill, the sum of $4000, in trust, to receive to his own use the interest thereon until some child of his should arrive at the age of twenty-one years, when he should pay over the said sum to such children as were then living; but if no child of his should arrive at that age, then the said sum should enure to his sole benefit. A similar gift was made to his son, Albert Gaskill; and the testator further declared his will as follows: “ and the said trustees, respectively, shall give bond for the faithful discharge of the trust, to the acceptance of the Court of Probate in which the will shall be proved.” On the 13th day of April, 1863, the said Warren Gaskill, then and still resident and domiciled in the State of Missouri, made and executed his bond in the sum of $8000, to the said Court of Probate, without surety, and presented the same to the said court for their acceptance and approval; and the said court thereupon adjudged and decreed, that the said bond was satisfactory. Erom this decree the executor, Albert Gaskill, neglected to prosecute his appeal to this court, from accident and mistake, and now asks a new trial for error in said decree, in not requiring sureties in said bond.

What we have to consider in this' case is, whether the testator, in giving the direction which he did in relation to the bond, could have contemplated that the mere personal bond of the trustee, conditioned for the faithful performancé of the trust, should be deemed* sufficient to secure that performance. What was the purpose of the testator in requiring a bond at all ? The trust was for the benefit of the children of the trustee, and no one else. The security required was for their protection; that when the period arrived for the payment and distribution of the "fund to them, it might be assured to them. As against their parent there would be no one interested for them, to. see that they came to their own. The trustee, if he failed to pay over the fund on the happening of the contingency, would, without the bond, -be personally liable. The bond, though it may give another form of action, can give no additional security either for good faith in the discharge of the trust, or for continued ability in point of estate, to make good any breach. It binds the person only and individual estate of the trustee, which were bound without it. The testator must have intended something more. It must be remembered that the trustees, both of them, were, and are still, domiciled beyond the jurisdiction of this State. The bond is made to the Court of Probate, and payable to them in their said capacity. If sued, it must be in the name of the Court of Probate, as such. The obligor is beyond the jurisdiction of, any court in this State. Unless he come voluntarily within it, no service can be made upon him to hold him to answer to any suit here. The remedy* is at his election, and not that of the Probate Court. In this view, the bond is no security whatever. To avail as security to the infant children, and to assure the payment over to them of their legacy at the appointed time, it would be necessary, not only that there should be surety or sureties of competent estates, so as reasonably to assure a continued ability to make good any breach of the' trust, but resident also within the jurisdiction of the court, so as to be made answerable to a suit whenever the obligees in the bond shall, after any such breach, think proper to enforce-tkeir remedy. Without this, the bond' is not such as the testator must have contemplated.

A new trial must be granted, to be had before the Court of Probate of said Cumberland, on Monday, the-day of February next, but without costs.