Upon decision in the Court of Appeals, Lillian Jones applied for restitution to her of the funds remaining. This was denied; a restraining order, however, issued, forbidding the further expenditure of funds until a determination in the instant proceedings. An appeal from the refusal to direct restitution was denied by the Court of Appeals.
This cause seeks a construction of the instrument in which the alleged trust was created and a determination as to the party entitled to the fund. An answer having been filed by the defendant to the amended complaint, the cause is before the Court upon a motion for a summary judgment.
It is obvious, from the terms used in the designation of the beneficiary, that Hogan Dunlap intended that the proceeds of the insurance policy should be used by or for the benefit of his daughter. It seems quite clear that the primary purpose of naming Lillian Jones in said instrument was to enable some one sui juris to execute a receipt and release to the insurer, without which his daughter, if then a minor, could not obtain the money. No duties on the part of the trustee, other than to execute such receipt, are expressed in the instrument. This is a clear instance of a dry or passive trust, under which the title passes immediately to the beneficiary. 26 R.C.L. 1171; Annotation 97 A.L.R. 729. Upon her appointment as guardian of the minor, the plaintiff became entitled to the possession of all property of said minor. That such fund should be expended by the guardian for the benefit of the minor, under the direction of the Court, and protected by the guardian's bond, admits of little question. And this is the more clearly emphasized by the contention made by Lillian Jones, in her answer to the amended complaint, that she "is advised that she is not a trustee of any sort, but is otherwise entitled to the said money"; and further that it was the intention of Hogan Dunlap that "the money was to be paid absolutely to Lillian Jones, leaving it to her moral responsibility to expend it for the said Sarah E. Dunlap; that his intention was to create obligations, legal as to the company, and moral as to the defendant, Lillian Jones; and that he did not intend to create a status (of trustee) in Lillian Jones."
The conclusion reached is that the fund in question is the property of the minor and should be administered by the guardian. Judgment will be entered accordingly.
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