Baxter

We review here an order made by the probate court in the course of its supervision of a testamentary trust by which it has authorized and directed a deviation from the express terms thereof because of a change of circumstances allegedly occurring after the testator’s death. The trustees have challenged the propriety of the court’s action which requires them to terminate the trust as to one of the beneficiaries and to pay all of his trust estate to his guardian. Appeal has been taken on a partial clerk’s transcript.

The testator, Charles F. Traung, died in 1940. He left surviving him his wife, Mae Percival Traung, his daughter, Betty Mae Traung, now Betty Mae Schenone, hereafter referred to as Betty and his son, Charles Louis Traung, hereafter referred to as Charles. In his will which was admitted to probate, the decedent created a trust in all of the residue of his estate for the above three persons as principal beneficiaries. In the record before us, we find the terms of the trust set forth in the decree of final distribution entered by the court on July 1, 1941. We summarize such provisions insofar as they are pertinent to this appeal.

The testator directed his trustees to…

I dissent.

To reach its result, the majority must hold that a man formally adjudged an incompetent in two states is nonetheless ‘‘capable of handling his portion of the trust estate with proper care and judgment. ’ ’ Moreover, it must hold that this is so clear that the contrary conclusion of cotrustee Jackson, in whom the will vests the power of determination, is arbitrary and unreasonable. As an incident, it is also neces *838 sary to overlook the provision of the will that termination of the trust shall be made “upon the request of” Jackson, who, far from initiating this procedure, has consistently opposed it and continues to do so. Moreover, insofar as the majority suggests that competency of a guardian of the beneficiary is an adequate substitute for the capability of the beneficiary which the testator desired, it holds that a guardian who is not shown even to have been known to the testator is to be substituted as custodian of this rather substantial estate for the trustees who are named in the will, and in whom the testator presumably had a substantial degree of confidence. To me, that result seems a complete rewriting of the will and a total frustration of the testator’s…