Maycel W. Fitzgerald, Appellant, v. Robert W. Mcchesney, Jr., Trustee Under a Trust Indenture and Executor Named in the Will of Francis E. Fitzgerald, Deceased, Appellee, 336 F.2d 905 (D.C. Cir. 1964)

This litigation is before us because of an incompatibility between husband and wife with respect to the religious training and education of their three minor children. As is so often the case, it is the welfare of the children which may be jeopardized by the conflict between the parents. Having been either unable or unwilling in life to make his wishes prevail, the father has made some effort to have the last word from beyond the grave by means of the conditional disposition he has made of his property. In the view we take of the record before us, we think it premature to decide whether this effort, assuming its implementation, can prevail as against the assertion that, on the facts of this case, the interests of the children themselves override the clashing views of the parents. Because the proceedings in the District Court appear to us to have been founded upon a mistaken construction of the father's directions, we think that judicial intervention was unnecessarily invoked and should have been withheld.

* Appellant is the widow of one Francis E. Fitzgerald, who died February 27, 1961.¹  The children of the marriage were three in number, of whom the oldest was about thirteen at the time of Fitzgerald's death. The marriage itself had been of almost exactly twenty years' duration, it having been entered into on January 17, 1941. Fitzgerald was a Catholic who had been married before, and it was for this reason that he informed appellant at the time of their marriage that the basic rites of his church would be denied him so long as he lived with her as man and wife. For a long period of time after the marriage, Fitzgerald attended no church. In the case of the children, although baptized as Catholics, they did not attend churches or schools of that faith, nor were they permitted by their father to attend any other church.

In 1956 Fitzgerald had a second heart attack, after which he decided to discontinue marital relations with appellant in order that he might receive communion and the last rites from the Catholic Church. It was apparently at about this time that appellant began taking the children with her to Sunday school and services at a Protestant church. This continued until Fitzgerald's death, as well as did the attendance of the children in the public schools. The record indicates that it was during these years that strains developed between appellant and Fitzgerald over these matters, growing to a point where Fitzgerald suggested a voluntary separation as the best solution. But he was unable to work this out, or to effect a transfer of his children to a parochial school. The home and family thus remained in this unbroken, albeit uneasy, situation until his death.

In 1953 Fitzgerald had executed a will in favor of appellant and the children. About 1960 he started consulting with his lawyer (appellee here) about his domestic difficulties in seeking to commit his children to Catholic training and education. One result of these consultations was the execution on April 21, 1960, of a trust agreement, naming appellee as trustee to receive the proceeds of the life insurance policies held by Fitzgerald, and to hold such other property as might be transferred by Fitzgerald to the trust. A few days later, Fitzgerald executed a new will which, at the least, left Fitzgerald's interest in a parcel of real estate to the trustee under the trust agreement. The effect of these transactions was to cause Fitzgerald's property upon death to come under the trust agreement and to be administered and eventually disposed of under the terms of such agreement.² 

It is the trust agreement which is in issue before us, and the questions presented arise out of Article Second thereof, which is set forth in full in the margin.³  The terms of Article Second may be summarized in this wise: The income and principal of the trust estate are to be devoted in the first instance to the support, maintenance, education and welfare of the children, with any undistributed balance, at the time the youngest child becomes 21, to go to appellant or, if she be not then living, to the children. If and when, however, the trustee is not satisfied that the children are being raised in the Catholic faith and educated in Catholic schools, he may thereafter apply both principal and income for the use and benefit of any children in the charge of any Catholic charitable institution or order until the youngest of Fitzgerald's children becomes 21, at which time the entire remaining trust estate shall go to such charitable order or institution as the trustee may select.

This action was initiated by the trustee in the form of a suit for declaratory judgment. His allegations are that he has come into possession of the trust res; that he has been confronted with the defendant-widow's refusal to conform the childrens' education and training to that specified in the agreement; that he considers himself under the necessity of administering the trust in accordance with the terms of the agreement; and that he is fearful of diverting the benefits of the grantor's property from the grantor's own children to others because of possible personal liability in the event the trust terms are ever held invalid. The answer alleges the invalidity of these terms, and envisages the holding of the trustee to strict accountability. Plaintiff-trustee moved for summary judgment, and it was urged in opposition that the trust agreement was invalid in two respects, namely, its religious conditions conflicted with public policy, and, to the extent that such conditions become operative, there was inadequate precision and certainty in the identification of the alternative beneficiaries. The District Court was not persuaded by either of these objections, and entered judgment to the effect that not only was the trust agreement valid in all respects but that the trustee had the "legal right and obligation" to administer it in accordance with its terms. This appeal is from that judgment.

II

Our difficulty with the proceedings had in the District Court resides in the assumptions seemingly entertained there with respect to the obligations imposed upon the trustee by Article Second. That provision is something less than a model of clarity in draftsmanship, but we think a fair reading of it in its entirety is consistent with these conclusions: The primary objects of Fitzgerald's concern continued to be his own minor children and, secondarily, appellant as the mother of them and his wife of twenty years' standing. This seems evident to us from the introductory language of the Article, as well as the specific directions in subparagraph (1) that the entire income and principal shall, subject to the absolute discretion reposed in the trustee by sub-paragraph (2) to channel the same funds at any time to appellant, be devoted to the support and education of the children during their minorities, with distribution of the corpus thereafter to appellant. If, however, the children are not, to the trustee's satisfaction, being trained and educated in Catholic teachings and schools, the trustee "may" elect to divert the benefits of the trust estate to other children being cared for by a Catholic charitable institution or order, with the corpus ultimately to be distributed to a Catholic charity which the trustee deems appropriate.

We stress the word "may" because, in this context of the possible diversion of a father's substance from three minor children for whom he has otherwise manifested affectionate concern, we believe its use, as contrasted with the alternative "shall," to have been of even greater significance than usual. We do not read Article Second as requiring the trustee under any and all circumstances to terminate his support of the grantor's children if and when he concludes that they are not being trained and educated in the Catholic tradition. We think the Article says in so many words that, in this contingency, the trustee may withdraw that support and direct it elsewhere. He has, in other words, a discretionary authorization from the grantor to do so, but, as in the case of discretionary grants generally, he need not exercise that discretion invariably in favor of diversion. In deciding what to do, presumably he would take into account, against the background of a father's natural preference for his own, the current facts with respect to the degree of need by such children for the help which the trust resources would otherwise provide, and any and all other circumstances relating to the special situations or requirements of such children. The father, as of the time the trust was created, could not possibly have foreseen all of the contingencies which might arise and, certainly in the absence of proof of provision for the children by him or someone else on a minimum basis, we do not think that he intended for his aid to be necessarily and irrevocably cut off in the event his hopes as to religious training were not realized.

We conclude that the case was presented to, and considered by, the District Court on a wholly different — and we believe, mistaken — construction of the trust instrument. The complaint, fairly read, asserts a need for declaratory relief for the reason that the trustee has no option but to divert the benefits from the grantor's children because of the current character of their religious training and education. It is said that, since the trustee must divert, so is he correspondingly placed in danger of personal liability if the trust provisions are ultimately held ineffective. Thus, the relief requested is that the trustee be adjudged to have "the authority and duty * * * to administer the trust according to Article Second B." The answer to the complaint appears to accept the trustee's allegations as to the inflexible position in which he finds himself; and the controversy was submitted to the court for resolution on these assumptions.

In ruling upon the validity of the trust instrument as so construed, we think that the District Court was anticipating an issue which might never arise and was granting declaratory relief under circumstances which did not establish the need for it.⁴  We must assume that the appellee was not aware of the discretion allowed him. We do not know what his course of action may be, or might have been, were he so informed. We are therefore presented with a case that will not materialize until the trustee, acting in the tradition of fiduciaries vested with discretionary powers, arrives at a judgment as to which way he will exercise his discretion. That judgment is to be informed by many current and highly relevant facts not revealed in this record. Those facts might be such as to cause a trustee, fully cognizant of the range of his discretionary authority, to conclude not to divert. There would then, of course, be no occasion to call upon a court to rule upon the validity of a contrary course of action. The declaratory judgment is a valuable addition to the array of modern judicial remedies, but it was never intended as a device for relegating to the courts responsibilities reposed initially in private parties. To render a decision in this case, without some indication of how the discretion is to be exercised, amounts to giving an advisory opinion upon questions of law which, however interesting, have not been rendered immediate and insistent by the pressures of discarded alternatives.

Since the complaint, read in the light of what we consider to be the proper construction of the trust instrument, did not present a matured and necessary occasion for declaratory relief, we reverse the order granting summary judgment and remand for further proceedings not inconsistent with this opinion.

It is so ordered.