1 N.H. 217 | Superior Court of New Hampshire | 1818
delivered the opinion of the court.
It is an established principle in the construction of alt instruments, that verba debent intelligi cum effectu, nt res ma-gis vcileat quam pereat
Had the testatrix not intended to raise a trust for some person, it is probable the will would have closed after the devise to the defendant. But her relations, as -well as the defendant, appear to have been objects of her bounty; for beside the plaintiff, she afterwards, under certain conditions, made provision for other remote connexions. The plaintiff, however, was her nearest relation, and not only so, but from the allusion to her habits, was doubtless destitute of property. To such a person it would be very natural for the testatrix to give a legacy: yet not very wise to give it
The fund, however, from which the appropriation was to be made, is designated with clearness ; because it was the income of her. “ estate,” which had before been described. It is true, that the amount of the appropriation is less distinct, being called “ a part of the income of my estate aforesaid, not exceeding 50 dollars a year.” But it is still said to be for “the support of” the plaintiff — placed “in some pious and Christian family in the country,” and consequently could not mean less than 50dollars, unless the “income” of the “estate” devised, or the expenses of her comfortable “ support,” situated “ in the country,” would amount to less. Whether they would or would not, can without difficulty be determined ; and quod potest reddi cerium, est cer-tumi
But if such a court existed here, no necessity appears in this case for its interference ; because the word, “ discretion,” as used in the will, applies to the manner only of the appropriation — or if to the amount like'wise, so many collateral circumstances limit its extept, that the amount can be ascertained and the discretion regulated in a court of law.
A person in this way invested with a discretion can never act “according to his arbitrary will”
On a consideration of these principles and authorities, we incline to the opinion that, by the whole will construed together, a trust must have been intended for the plaintiff, and that this opinion is in conformity with the general rule laid down by lord Eldon,
In the common case, where money is, without an express contract, received to the use of another, the practice to sustain an action and allow damages for the non-performance of the trust to pay it over, is well settled. Indeed, it has often been said that this is a liberal action in the nature of a bill ™ ehuity,
•'pjei a verdict be entered for the plaintiff for the sum agreed,
i) phwi. ise.
{2) Bac B_
Richardson, C. J., having been counsel, did r¿ol sit.
Bac. Leg. B. ■ — 1 Sound. Us 210. — 2Fonb.37,
Atk. 463, Harding vs. Glynn.
15) vattdie sec. 28L
; 2
{-/) 3 vez.jr. 7,
10 Mod. 404 Nab vs. Nab.
1 Com. C. 4.
2 Vern. 153 Wareham & al. vs. Brown.
4 Ma. R., 636, Farewell vs. Jacobs.
*-8 104- — J°°Th-
Bac. Lea. C.— 2 Fíra.5Í3.
Barr. 570, 560, 2539.-AD. & E. 757.- 8 John. 426, Rose vs. Stuyvesant.
2/Mst.289. —8 Mass. R. 40.
i6) 8 jr,t c<mpum.
5 D. & E. 608, Smith vs. Jameson.
Cowen 199, Clarke vs. Shee-2 Burr. 1010.
4 M. R. 636, Farewell vs. Jacobs.