Clement v. Clement

19 N.H. 460 | Superior Court of New Hampshire | 1849

Woods, J.

The principal defendant in this ease, owning one-eighth part of a remainder expectant, upon the determination of a life estate in certain lands, in conjunction with the tenant for life and certain other of the remainder men, sold an undivided portion of the land, and placed the money in the hands of Tutherly, summoned as trustee, for the purposes indicated in the writing which he has set out in the disclosure. As there is no surmise of fraud, it is not necessary to advert particularly to the interest which the defendant had in the land previous to this arrangement, with reference to its availability in behalf of his creditors. The •interest which he had, he was perfectly competent to part with, for whatever he might deem an equivalent in money, to be paid presently or at a future day, absolutely or upon contingencies.

In fact the life estate and remainder were sold for a gross sum, placed by common consent in the hands of Tutherly, to be farmed for the benefit of the widow during her life, and to be paid at her decease to the several parties entitled, according to the interests in the estate in remainder with which they had parted. This is what Tutherly has assumed to do ; and the question arises whether this undertaking is in the nature of a debt from him to the defendant, to be paid at all events, upon the decease of the tenant for life, or whether it is a mere undertaking on the part of Tutherly to invest the money so often and so long as, in the exercise of a sound judgment and prudence, he can, during the life of the widow of the testator, and at her death, to collect the same, so far as it can be collected with reasonable diligence, and pay over so much as he shall be able to collect, to the parties entitled. Whether, in short, by receiving the money, he became the debtor to the parties who placed it in his hands, or their trustee and agent for investing and taking care of it.

We think there are sufficiently clear indications that the relation of trustee was the one which the parties intended to create. It was not designed for the benefit of Tutherly, but for that of the other parties. He does not appear to have borrowed the money, but merely to have assumed the care and custody of it; and although some expressions in the receipt or obligation which he gave might, taken by themselves, import a more stringent and absolute duty, the clear purpose of the whole transaction was to establish the relation and duty of a fiduciary, in respect to the fund, and no other.

As a trustee, he was bound to exercise prudence and dilgenee, but was not liable to repair any losses incurred through inevitable misfortune. Willis on Trustees 186; 2 Fonb. Eq. 178; Jones v. Lewis, 2 (Betts) Yes. sen’r. 241. In ease of age, sickness or other incapacity, he might resign his trust, or be displaced by the court, and another substituted, upon a bill filed for that purpose. Willis 224 and 145, note r.'

To charge the party as garnishee, therefore, in this case, would be to impose upon him altogether different and more onerous burdens than those which he has assumed. He has bound himself to place the fund at interest, and to keep it out, so far as he can, for the benefit of the tenant for life, who parted with her estate upon this express condition. This would make him answerable for the safety and success of such investments, while he has stipntated only to make them with reasonable prudence.

The money in his hands is subject to all the hazards of business, to accidents from fire and floods, and the violence of robbers; and at the decease of the tenant for life, may be wholly lost, from causes over which the trustee has no control, and is not in law responsible for. In this respect, it is no more than a debt payable on a contingency; and, therefore, by the decisions, not a debt for which the trustee can be charged by this process. Haven v. Wentworth, 2 N. H. Rep. 93; Randall v. Rich, 11 Mass. 493.

Trustee discharged.