PRESIDENT, DIRECTORS AND COMPANY OF FARMERS BANK OF DELAWARE et al.
DELAWARE TRUST CO. et al.
Proceedings by testamentary trustee for instructions concerning making of payments under trust for life benefit of mentally ill sister of testator. The Court of Chancery, Seitz, Chancellor, held that when trust instrument directed that trustee spend so much of the trust fund as necessary for support and comfort of sister, and unmarried testator had lived with and cared for sister for years, and was aware of her mental condition and that her only asset was a house and furnishing, intent disclosed was that the furnishing of support to sister was not to be conditioned on a prior exhaustion of her assets.
Order in accordance with opinion.
Will creating trust for life benefit of mentally ill sister of testator and directing that trustee expend so much of the trust fund as necessary for support and comfort of sister, when considered with fact that apparently unmarried testator who had lived with and cared for sister for years, was aware of her mental condition and that her only assets were a house and furnishing, disclosed intent that furnishing of support was not to be conditioned on prior exhaustion of sister's assets, but that directions to trustee merely fixed the standard by which he was to exercise his discretion in determining amount to be spent.
George M. Fisher, Dover, for plaintiff.
W. W. Harrington, Dover, for Delaware Trust Co., Trustee for Josephine Kerin, an insane person.
Max Terry, Dover, for Bernard A. Behen and Robert J. Campbell, Jr.
[33 Del.Ch. 431] Howard Lynch, Jr., Dover, for John E. Connor.
William J. Storey, Dover, for Anna D. Behen, Executrix under the last will and testament of James J. Behen, deceased.
The plaintiff, testamentary trustee, seeks instructions as to whether it should make payments from income and principal for the support of the mentally ill beneficiary under the trust while she has assets of her own.
John E. Kerin executed his will June 14, 1934 and died October 30, 1934. At both dates his sister Josephine Kerin was suffering from mental illness and was confined to the Delaware State Hospital. After making some specific bequests the testator left the residue of his estate to plaintiff in trust for the following purposes:
‘ To expend so much and such part of the net income from said trust fund as shall be necessary for the support, care, treatment and comfort of my sister, Josephine Kerin, for and during her life. Should my sister's condition improve and/or the Trustee deem it in my sister's interest that she be removed from the institution where she now is, I empower the Trustee to cause such removal and to place her in an institution either in or out of the State of Delaware, * * *. I vest in the said Trustee full power in its own absolute discretion to expend from time to time and at any time so much and such part of the principal of the trust fund aforesaid as the Trustee shall deem proper for the support, care, treatment and comfort of my said sister.’
The will also provided that upon the death of the testator's sister the trustee should pay the funeral expenses including the cost of a suitable tombstone and should then pay ‘ the corpus or principal of the trust fund as it shall then be constituted unto my following named nephews; Bernard A. Behen, James J. Behen, John E. Connor and Robert J. Campbell, Jr.’ .
For many years prior to his sister's illness the testator lived with his sister. She was first committed in 1933 when about 61 years of age. The house in which they lived was owned by his sister and, apart from some household furnishings, constituted her only asset. It is fair to infer that the testator knew of her assets just as ...