Brock v. Sawyer

39 N.H. 547 | N.H. | 1859

Sargent, J.^*

It is difficult to see upon what grounds the respondent could conclude that the interest upon the seven hundred dollar bequest to Susan Maria Hanson was to be paid to the residuary legatees, and not to her. From the form of this bequest in the will of Mary Hodgdon, we conclude that this legacy was to be separated from the remainder of the estate, and severed and set apart for the specified purpose, as much as the sums of $50 each to the several legatees under the first section of said will. Those legacies were to be paid in six months, or upon the legatees’ arriving at the age of twenty-one years ; this one at such times and in such sums as the executor should think proper and most for her benefit. This legacy was to pass, not, to be sure, into the hands of the legatee immediately, but into those of the executor in trust for hex’, upon the death of the testatrix, and from that time whatever interest may have accrued upon this sum belongs as much to the legatee as the principal does, and in the same way. "We come to the same conclusion also from considering the subsequent section of said will, which disposes of all the rest, residue and remainder of the testatrix’s estate, as though the sums before specified were to be first taken from the estate, and set apart for the purposes and trusts for which they were designed. There can be no manner of doubt but that the interest accruing upon this sum of $700 from the decease of the testatrix, is to be appropriated for the bexxefit of the legatee, like the principal, in accordance with the provisions of the trust.

The effect of the provisions in the will is to create a trust and to constitute the executor of the will a trustee of the oratxix, the legatee ; and he would be chargeable for any breach of his trust, like trxxstees in other cases. It is too well settled to be for a moment controverted, that this court, in such cases, may interfere in behalf of the cestui que trust, upon her own application or that of her friends, in a case of gross neglect or refusal of the trustee to pay over money as her wants or necessities might clearly require. Kimball v. Reding, 31 N. H. 76 ; Adams’ Eq. 61.

It is not contended in this case that the court have not that power, provided a case were shown which called for any such interference. But it is claimed that no such case is made out here. The plaintiffs were married November 28, 1855, and it appears, by the testimony in the case, that Brock was a currier by trade, and could earn a dollar a day; that he is temperate and industrious, and enjoys good health; that he has constant employment; that he and his wife are both young, and have but one child, about two years old ; that the mother and child are in the enjoyment of health, except that Mrs. Brock says she has not been well for a year, but has been able all the time to do her house work. It does not appear that they have been at any expense in consequence of sickness, either in paying doctors’ bills or procuring help in the family. The money has not been required for the education of the child, as it may be hereafter, if the child should live.

The respondent in his answer alleges that the orator, Brock, is not provident and careful of his means, and that, therefore, it would not be proper to pay over this money to him or for his family, faster than their immediate wants require. The evidence upon that point only shows, however, that Brock owes two debts of about twenty dollars each, upon one of which he has been sued.

The evidence also tends to show that Mrs. Brock, before her marriage, and before the making of said will, had been ill, and had exhibited symptoms which led the testatrix to fear that she might at some period of her life become incapable of taking care of herself without assistance. And it also appears that this bill of complaint was filed December term, 1857, and that after the decease of the testatrix, in the fall of 1851, and before the filing of this bill, a period of some six years, the respondent had paid over to the oratrix the legacy of $50, and $239.38, which he claims to be the amount of the residuary legacy, which could not, by the terms of the will, be paid until the death of her mother, about August 9, 1855; and the further sum of $109.67, upon the legacy of $700, amounting in all to $399, or about sixty-six dollars a year, upon an average. By the terms of the will, this legacy of $700 was to be paid in such sums and at such times as the executor should think proper and most for the benefit of the legatee.

Upon these facts and circumstances, the question arises whether a case is made out calling for the interference of the court; and we are clearly of opinion that no such case is shown upon the evidence. While the defendant does not claim, and could not properly claim, that he had an arbitrary discretion in the premises ; that he had a right to pay or not, according to his own mere whim or caprice, yet he may, we think, properly claim that, having been entrusted by the testatrix with this legacy, to be paid as he should judge most for the benefit of the legatee, the court should not interfere with that discretion, until some kind of a cause is shown of its abuse. We think it apparent, from the terms of the bequest itself that the testatrix did not expect or intend that the executor should pay this legacy all at once, or in large sums, but in such sums as the wants or necessities of the legatee might, from time to time, require; and it was his duty to take into consideration not only her present position and wants, but her future prospects. A personal trust was reposed in the executor, who was well known to the testatrix, he being her brother-in-law, and it was the will of the testatrix that his discretion should govern and regulate the payments to the legatee ; and until it is made to appear that he has in some way abused his trust, and neglected to provide for the wants of the legatee, the court will not interfere; and clearly no such case is made out by the evidence here.

The legatee and her husband ask for the whole of this legacy, to be invested according to their discretion, thereby superseding the discretion of the trustee; and while we cannot doubt that the executor is to apply the interest upon this sum as well as the principal to the purposes specified, and that this was the design of the testatrix, yet it would seem to be apparent also that she did not contemplate that this legacy should be invested in a homestead ; for, had that been her intention, she would undoubtedly have so expressed it in the will. We certainly are unable to discover any breach of trust, or any failure to perform his duty, on the part of the trustee, in declining thus to invest it. This trust was created for the personal benefit of the legatee during her life; and if any of it remain unexpended at her decease, provision is made in the will for its distribution. We think, therefore, that the design of the testatrix, as gathered from the will alone, evidently was that the husband of the legatee, if she should ever have one, should not acquire any right or title in or to this fund, or have any control over the same, in any way whatever. The orator, therefore, has, by his marriage with the legatee, acquired no right or title to this legacy, and cannot collect the same or any part of the same, either of principal or interest, or appropriate or in any way control it, until it shall be first paid over to the legatee by the trustee. But he unquestionably acquired, by his said marriage, the right to demand and recover whatever may remain unpaid of the fifty dollar legacy, or the interest upon the same, if any is due; also any balance of principal or interest that may remain due and unpaid of the residuary legacy, as all the contingencies upon which the payment of these sums depended had happened before the filing of this bill, and, in fact, before the intermarriage of these plaintiffs. It appears by the schedule of the property belonging to the estate of the testatrix, which came into the executor’s hands for administration, that there was, in cash on hand, §804.81, and thirteen and one third shares of Concord Railroad stock, which, at par, amounted to §666.66. There was also a schedule of notes, which had been on interest for a time, but upon which no interest had been computed in the schedule, and which, without interest, amounted to §1,898.27. It no where appears that the executor has allowed or accounted for any interest or income upon all this property; either for the interest due on the notes at the time of the testatrix’s decease, or, since her decease, upon any of her estate. From the nature and situation of this property, it might, perhaps, be fairly presumed that all of it has been drawing interest while in the executor’s hands; at least in the absence of all testimony tending to rebut such presumption. If the executor ip thus to be charged with interest, it would seem that there must be something remaining unpaid upon the residuary legacy to the oratrix, which the plaintiffs are entitled to. It is also claimed that there is a balance of interest in the executor’s hands, which he should have paid fo the said Abigail B. Hanson, in her life-time, but which was not thus jsaid. If this should be found to be so, then the plaintiffs would be entitled to this balance. The plaintiffs also claim a balance of interest as being due upon the fifty dollar legacy. We have not sufficient facts before us to show how much interest the executor should be chai-ged with, or how much he is entitled to receive in off-set for his services. Those questions which are thus properly in issue between the parties in this 23roceeding, together with the whole question of interest upon the estate, may be referred to a master, who may, in case the parties do not themselves adjust these matters, take testimony, hear the parties, and find and report the facts to this court, whereupon such orders will be made as shall be deemed just and equitable.

* Bellows, J., having been of counsel, did not sit.