Jachebet T. ROOS and Sadie R. Keyser, Trustees of David L. Topkis, Plaintiffs,
Jachebet T. ROOS, Emile V. Topkis, Bernard H. Topkis, Executors fo the Estate of Hannah R. Topkis, Defendants.
[42 Del.Ch. 41] F. Alton Tybout, Wilmington, for plaintiffs.
Garry G. Greenstein, of Wahl, Greenstein, & Berkowitz, Wilmington, for defendants.
SHORT, Vice Chancellor
This is an action to reform a written declaration of trust. Plaintiffs are the trustees named in the trust instrument. Defendants are the executors of the estate of the deceased wife of the settlor. The case is before the court on plaintiffs' motion for summary judgment.
On June 19, 1936 David L. Topkis executed a written declaration of trust declaring that he was possessed of 500 shares of the common stock of Strand Realty Company,
a Delaware corporation, 'in trust as follows:
'FIRST: During my life the dividends of said stock are to be held for and on my own account or order.
'SECOND: In case I shall die before my wife, HANNAH R. TOPKIS, said stock is to pass to and be transferred to JACHEBET H. ROOSE and SADIE R. KEYSER, my daughters, or the survivor or successor as trustees to pay the dividends thereon to my said wife, HANNAH R. TOPKIS, or her order for life.
'THIRD: In case my said wife dies before my own death, then the stock is to be held from and after my death by my daughters JACHEBET H. ROOS and SADIE R. KEYSER, * * * as trustees, * * * to pay the net income to and among my four children, JACHEBET H. ROOS, SADIE R. KEYSER, EMILE V. TOPKIS, and BERNARD H. TOPKIS, in equal shares, during their respective lives and at and upon the death of any of my children * * * to pay the income arising from the share of each deceased son or daughter to his or their children of my own blood, in equal shares, until the death of all of my said children and * * * to assign, transfer, and set over the said five hundred (500) shares of the common capital stock of said Company to the grandchildren of my own blood, * * * clear and discharged of all trusts * * *.'
The instrument concluded with a spendthrift provision. It also commenced with a preamble which recited, inter alia: 'WHEREAS, [42 Del.Ch. 42] said stock was thus given to and taken by me in my name as Trustee with the intent to create a trust fund for myself and my wife for our respective lives and for our children upon our decease * * *.'
By the first item of his last will and testament dated August 29, 1939, David L. Topkis devised and bequeathed his entire estate to his wife Hannah R. Topkis, absolutely and in fee simple. By succeeding items in said will Topkis provided for the disposition of his estate in the event that his wife predeceased him. David L. Topkis died on November 28, 1939, leaving his wife, Hannah R. Topkis, to survive him. The trustees, pursuant to the terms of item Second of said trust instrument, paid the income from the trust of the widow, Hannah R. Topkis, until her death on May 20, 1962. By her last will and testament dated August 29, 1949 Hannah R. Topkis devised and bequeathed the residue of her estate to the defendants in trust for the benefit of her children and grandchildren with provisions, so far as material, identical in effect to those in Item Third of the trust instrument.
The complaint recites the above facts and alleges that it was the intent of the settlor that the income and principal of the trust should be disposed of in the manner provided by Item Third of the trust instrument in any event, whether he survived his wife or she survived him. It further alleges that 'through an oversight in drafting' the settlor 'neglected to make his intention clear.' The trustees ask the court to reform the trust instrument by adding appropriate language to Item Third of the trust declaration which would then read as follows: 'THIRD: In case my said wife dies before my own death, then the stock is to be held from and after by death, or in the event I predecease my wife, then upon her death, by my daughters, JACHEBET H. ROOS and SADIE R. KEYSER, or the survivor or successor as trustees * * *.'
Defendants' answer admits all of the material allegations of the complaint, including the allegation of the settlor's intent.
In support of plaintiffs' motion they have filed an affidavit of the attorney who drafted the trust instrument. This affidavit recites that the attorney 'in 1936 was requested by David L. Topkis to prepare [42 Del.Ch. 43] a Declaration of Trust in the shares of stock of Strand Realty Company, whereby he, as Settlor, would hold the stock in Trust ...