32 A. 766 | N.H. | 1893
The testator, in the exercise of his legal right (Per. Tr., s. 287), made the defendant's right to be a trustee dependent upon a condition precedent. In the words of the will, the defendant must "become and remain temperate, sober, and correct in his habits for the entire space of five years together" before he will be entitled to that office. In order to carry the provision into effect, it was necessary that some one should have authority to decide whether the condition had been complied with. If the testator did not specially authorize some one to do this, the courts having jurisdiction of such matters would possess the authority. But the testator was at liberty to confer the authority upon any one he saw fit, and the evidence shows that he conferred it upon the trustees.
The general purpose of the will seems to have been to place the trustees, with certain limitations, in the position which the testator himself occupied before his death, in respect to the management of his estate and the care of his children and their dependents. He intrusted to their discretion the determination of the question whether his children needed aid from time to time for their proper support in addition to the provisions he specifically made for them, and if so, the amounts required. Being of opinion that his son's habits might render him unfit to have the care and expenditure of the money given for his support, he authorized them, in that event, to expend the money for him. They could not exercise this authority without first deciding upon the son's fitness. The decision of this question was committed to them as an incident of the authority conferred. He also gave them large discretion in respect to the support of his son's widow *447 and the aid to be furnished to his grandchildren. It appears that he trusted them implicitly in respect to all these matters; that he had faith in their judgment and integrity; and that he believed they would deal with his children and grandchildren somewhat as he would have done under the same circumstances, if living. Such being his confidence in them, they would naturally be the persons whom he would appoint to decide the question of the son's fitness for the trusteeship, especially as he made that fitness depend upon the same conditions as the fitness for the care and expenditure of the money given for his support. The fact that he committed the decision of the latter question to them makes it reasonably certain that he intended to commit the former to them also. Otherwise, it might happen that his son would become a trustee, having equal powers with the other trustees in the management of the whole estate, at a time when they were, in good faith, withholding from him the care and expenditure of his annuity on account of his unfitness therefor by reason of his intemperate habits. It is not supposable that the testator intended his son should ever occupy these incongruous positions. He had no idea that he had introduced provisions into his will which would make such a result possible.
Neither is it probable that he intended to make the question of the son's reformation the subject of recurring litigation. If the probate or the supreme court had jurisdiction of the matter in the first instance, it is conceivable that they might be called upon frequently to consider it, and that long and bitter litigation would result, involving large expenses, estranging the trustees and the defendant, and bringing scandal concerning the testator's family to public notice.
The number of trustees intended by the testator is complete without the defendant. If the defendant becomes entitled to be a trustee, his appointment will not fill a vacancy, but will be an addition to the original number. His case does not come within the provision of the will that if any executor or trustee shall decline to act, or die, application shall be made to the supreme court, by those who are acting, to fill the vacancy.
The testator, by the provision for adding the defendant to the trustees upon the reformation of his habits, has shown that he regarded him as a suitable person for the trust in all other respects. The only question to be determined as to his appointment is, whether he has made the requisite change in his habits. The provision which authorizes the trustees to determine whether he shall be entrusted with the expenditure of the annuity given for the support of his family, and that which authorizes his appointment as co-trustee upon the reformation of his habits, are included in the same clause of the will, — the former being in the first paragraph of the clause, and the latter in a paragraph immediately following it and beginning with these words, "And if my *448 said son shall become," etc. The fact that he was so explicit, in the first paragraph, in providing that the trustees should determine the defendant's fitness to have the care and expenditure of the money there referred to, rendered it unnecessary to repeat the same idea in the second paragraph, which was so closely connected with the first. If the second paragraph had begun, And if it shall appear to the trustees that my said son shall become, etc., it would have been scarcely more expressive of an intent to submit to them the question of his compliance with the condition upon which his right to become a trustee is based. The performance of their duty in respect to the matter first mentioned would necessarily qualify them to form a correct judgment upon the latter question.
The provisions of the will indicate that the testator had no distrust of the trustees because of their pecuniary interests growing out of their office. It would be for their interest to pay as little money as possible for the support of the testator's children, grandchildren, and daughter-in-law, in order that they might retain in their possession a larger balance. Such course would naturally increase their income from the office. But the testator did not withhold his confidence from them on this account, nor accompany its bestowal with embarrassing limitations or conditions. He trusted them fully and freely in respect to these matters; and there is no reason for supposing he had any less faith in their capacity to act justly and fairly upon the question whether the defendant had entitled himself to become a trustee. The allowance to a trustee is governed by the rule that reasonable compensation is to be made for services rendered. If the defendant is added to the number, he will be entitled to reasonable compensation for the time he spends in performing his duties, the same as each of the other trustees; his addition to the number cannot very seriously affect their income. This reason has slight weight in opposition to the reasons before given.
A consideration of all the evidence shows that the testator intended that the trustees provided for in the will, and the defendant, should solve the question of his reformation between themselves; that the trustees should exercise the kindly and charitable offices of a parent towards the defendant, and influence him to become a man of temperate and correct habits, permanently established and; that the defendant should respectfully yield to these offices, and become what the testator so earnestly desired.
So long as the trustees exercise their discretion fairly and justly in respect to the matters intrusted to them by the testator, the law will not interfere. Brock v. Sawyer,
Case discharged
All concurred. *449