Bean v. Bean
33 N.H. 279
N.H.
1856
Check Treatment
Eastman, J.

Notwithstanding the - deed of the premises, spoken of in the trustee’s disclosure, was taken in her name, the property did not belong to her. The purchase was made by *284Jacob Davis, her father, for $625. To pay this sum, notes against Dolphus S. Bean, of whom the place was purchased, to the amount of $475, belonging to the estate of the trustee’s husband, were given up to Bean; and we infer from the disclosure, although the fact is not distinctly stated, that the balance, being $150, was paid by Davis.

It does not appear that any administrator on the estate of Daniel Bean, Jr., the husband of the trustee, had been appointed, or that the estate was legally settled ; and the delivery of these notes to the grantor of the premises, so far as the disclosure shows, was wholly unauthorized. Where the heirs of an estate are of full age, and capable, they may settle the same between themselves without administration; and their agreements, if understandingly and fairly made, will be binding upon them. Giles v. Churchill, 5 N. H. 337; Hibbard, Admr., v. Kent & al., 15 N. H. 516; Clark v. Clay, 11 Foster 393.

But Daniel Bean, Jr. left one minor child, who was twenty years old at the time of the disclosure. The estate could not, therefore, be legally settled without administration, and the delivery of these notes in part payment for the premises was illegal. There was no one authorized to give them up.

If the notes had been legally surrendered to the grantor of the premises, as the property of the estate, and Davis had paid the balance of the purchase money, the widow would be the holder of the property in trust for the estate and her father. Such facts would show a resulting trust in favor of the estate and Davis. Pritchard v. Brown, 4 N. H. 401; Page v. Page, 8 N. H. 187; Pembroke v. Allenstown, 1 Foster 107; Powell v. Monson, 3 Mason 347; Jackson v. Matsdorp, 11 Johns. 90; Gardner Bank v. Wheaton, 8 Greenleaf 373.

Upon the facts disclosed, however, this trustee was not the owner of these premises, although a deed had been made to her in her name ; and she could not be charged for the repairs done upon them by Lemuel W. Bean, the principal defendant, unless by express contract with him to do the same. No such contract is shown, nor does it appear that there was any request by the *285trustee to have the repairs made, or that anything took place between her and the principal defendant in regard to the same. He was her son, and probably supposed that he had an interest in the premises, as heir of his father, by reason of the notes being surrendered as part of the purchase money. And he may very likely have also supposed that he was increasing his interest in the premises by the repairs which he made.

There being, then, no indebtedness existing from the trustee to the principal defendant, for which he could maintain an action against her, she cannot be charged as his trustee.

But even should we hold that the trustee was indebted to the principal defendant for the repairs made, she could not be charged on this disclosure. There is no price fixed for the labor done or the material furnished, and nothing from which the court could find a definite sum with which to charge her. Before she could be charged, further facts would have to appear.

It is possible that the trustee might be charged for a small amount of provisions furnished, were more facts stated; but it cannot be done as the matter stands ; and it is not for this court to order a further disclosure.

Trustee discharged.