48 N.H. 219 | N.H. | 1868
The will, which created this trust, required the fund to remain in the hands of the trustees for an indefinite period, and the execution of the trust was no part of the administration of the estate. Here, as was said in Leavitt v. Worcester, 14 N. H. 566, "the two characters of executors and trustees are united in the same persons, but the liabilities of each are as distinct as if the persons were different.” If the trustees had been different persons, when a sum of money belonging to the trust fund was found in the hands of the executors on the settlement of their account, the decree would be that the executors pay that sum over to the trustees. When paid over pursuant to the decree that sum would be administered and no longer be part of the estate, but the legal property of the trustees with the beneficial interest in the cestuis que trust under the provisions of the will. The jurisdiction of the probate court in the administration of that fund would be exhausted
Until there had been a settlement of the administration account, and some decree or order showing that this fund was in the hands of the trustees as such, they would not be chargeable with the fund as trustees, nor bound to appropriate the income; because, until such settlement and decree, it would be doubtful whether the estate would not be required for other purposes. It must therefore be assumed that this fund had been adjudged by decree of the probate court to the trustees as the fund created by the will; otherwise there is no pretence that the trustees are bound to distribute the income of a fund which they never held in their capacity of trustees ; and the case stands as if the trustees were different persons from the executors, and the executors had been decreed to pay the fund to the trustees, and had paid it accordingly. We cannot, therefore, treat this fund as part of the estate still in the course of administration. The executoi’s cannot be charged as trustees until they are discharged as executors. If this application can be maintained, it must be on the ground that, after an estate, out of which a trust fund has been created by will, has been fully administered, the court of probate has jurisdiction to give a construction to the will, to decide on conflicting claims to the income of the fund, and enforce the general execution of the trust according to the intent of the donor. For this petition calls on the court to determine who are the parties entitled to the benefit of the trust, to give a legal construction to the provisions of the will, to enter on an investigation of the circumstances and wants of the different cestuis que trust, and enforce the division and application of the income according to the intent of the will which created the trust. If the court can do all this, it is quite clear that it must be in the exercise of a general equity jurisdiction over all trusts created by will. It is not a claim to interfere for the preservation and safety, or for the profitable investment, of the fund ; it involves the construction of the bequest., the question what parties are entitled to the beneficial interest in the fund, and the general enforcement of the trust, covering the whole ground of equity jurisdiction over the subject.
It is important to observe that these trustees have given no bond in the probate court, to which resort might be had in a suit at law to enforce performance of the decree of that court. The fact that this trust was created by will gives the probate court no practical advantage in making the necessary investigation, or in enforcing the orders and decrees of the court; for the trustees have given no bond, and the estate, out of which the fund was derived, is administered and beyond the control of the probate court. So far as the nature and reason of the case are concerned, the probate court might equally well entertain jurisdiction over a trust created by deed ; for this trust, though created by will, is now transferred beyond the control of the court by a complete administration of the estate, and no bond has been taken under the statute.
It has been held that our courts of probate have an extensive jurisdiction not conferred in express terms by statute, but implied by reference to the powers and practice of the ecclesiastical courts in England. Morgan v. Dodge, 44 N. H. 258. For the extent and limitation of the jurisdiction in our courts of probate, when not fixed by statutory provisions, we must therefore resort to the ecclesiastical law. I find nothing in that law which affords any support to the claim of jurisdiction here made for our courts of probate. The ecclesiastical courts do not appear to have intermeddled at all with the execution of trusts, or with" the charge and disposition of trust funds in the hands of the trustees, whether the trusts were created by will or otherwise. The trustees did not give bonds or settle any account in the ecclesiastical courts ; and there was no law or practice which required trustees appointed by will to give bonds or account in the probate court here until the statute of 1820. When a fund was distributed to a trustee under a will, the ecclesiastical courts, so far as I can discover, had nothing further to do with it; but the trustees, as in cases where the trust was created by deed, were subject to the general jurisdiction in enuity, where the construction of the will which created the trust was settled, the conflicting rights of parties determined, and the execution of the trust enforced by the process of the court.-
Where our statutes have not introduced a change, the ecclesiastical law may be resorted to as a safe guide for the interpretation of our probate laws. The substance of our system is borrowed from that law, and the methods and remedies in our courts of probate, except where others are provided by statute, follow the general course of procedure in the ecclesiastical courts. One peculiarity in the jurisdiction of those courts is that they have no direct process for enforcing their own decrees. They can "neither imprison, fine, amerce ;” Gilbert Godfrey's Case, 11 Co. 44, a; and Blackstone says, 3 Com. 101 : "The point in which these jurisdÍ9tions are most defective is that of enforcing their sentences when pronounced, for they have no other process but that of excommunication.” Besort was necessarily had to the temporal courts for aid to enforce the sentences of the ecclesiastical jurisdiction. Blackstone, Ibid,. In this respect our law has followed the examples of the English, and has not, as a general rule, confided the execution of their
As we are of opinion that the jurisdiction over trusts claimed in this case for the courts of probate is not conferred by thegeueral gra nt of probate jurisdiction in the statute, and cannot be derived hom the practice of the ecclesiastical courts in England, we must look for it, if it exists, in some of the provisions of the statutes which relate to this subject of trusts.
I do not find that the courts of probate had by statute any jurisdiction over trusts for any purpose till the statute of June 21, 1820, entitled, "An act granting additional powers to the courts of probate, and for the regulation of trustees and guardians,” which required that, where a trust was created by will, a bond should be given, provided for the removal and appointment of trustees, for an inventory anel the settlement of an account substantially as the statutes do now ; but gave the judge no power to interfere with the management of the trust estate, except by calling the trustee to account under his bond. The statute of. July 2, 1838, entitled, "An act relating to trust property,” empowered the judge of probate, in cases of property held in trust under a will, "to authorize and require the trustee to sell any property so holden in trust, and to invest the proceeds of such sale in such manner as will be most for the interest of all persons concerned ; and the said judges respectively, may, from time to time, make such orders and decrees as they may think just and reasonable in relation to the sale, management, and disposition of said trust.” These provisions of this act were retained in the Revised Statutes, adding' "and to the settlement of the account of such trustee and no further change has been made in this law. Rev. Stats., ch. 168, sec. 9; Gen. Stats., ch. 186, sec. 9.
The bond required to be given by the trustee is with condition that he
The general object of bonds required to be given in the courts'of probate is to secure the rights of all parties interested, where their rights are determined in the proper jurisdiction ; and, until thejr are so determined, claims on the estate cannot, as a general rule, be enforced by suit on such bonds. The suit is in the ordinary courts of law, and the remedy is not by an)? proceeding in the court of probate. The same reason and rule apply in the case of a trustee as of an administrator. The bond in both cases is a general security that the fund shall be forthcoming to answer all legal claims on it; but those claims may be of a nature which requires them to be considered and determined in another jurisdiction. No bond has been given in this case; but if there had been, we think there is nothing in the condition of the bond from which we can infer a grant of general equity jurisdictionover trust funds created by will.
It is maintained that, under th£ grant, in the act of 1838 and the Revised Statutes, of power to make such orders and decrees as he may think just and reasonable in relation to the sale, management, investment and disposition of the trust property, the judge of probate has jurisdiction to settle the construction of the will, determine who are entitled to the income of the fund, enforce the application of the fund, and, in general, exercise full jurisdiction over the trust; that the term "disposition” used in the statute, implies this grant of general jurisdiction over such trusts.
In the first place, the word disposition standing alone is at least equivocal, and may as well, or better, relate to the leasing, and the sale and reinvestment of the property in the hands of the trustees with a view to the safety and profit of the fund, as to the distribution of the fund among the cestuis que trust. But the thing that is to be disposed of under the order of the court, is the same that is to be so managed, sold and invested and disposed of; that is to say, the fund itself, and not the income and use, which belong to the cestuis que trust. Then,
It is to be observed that this term disposition is used in reference to the management of property in the hands of guardians, where I suppose it would hardly be contended that it meant more than the management and disposition of the property in the hands of the guardian. Revised Statutes, eh. 152, sec. 4.
The question here was upon the construction of the will which created the trust, and as to the conflicting claims of different parties to the beneficial interest in the fund. The probate court was called on to settle the construction of the will, determine the rights of the parties, and enforce the execution of the trust. These questions properly belong to the general jurisdiction in equity. Brock v. Sawyer, 39 N. H. 547; Portsmouth v. Shackford, 46 N. H. 426. The general jurisdiction inequity is conferred by statute on the supreme judicial court, and especially in case of trusts. There is no ground to suppose the legislature intended to give equitable jurisdiction to any other court; Gen. Stats, ch. 190, sec. 1 ; and this subject of trusts is particularly mentioned as belonging to the jurisdiction in equity conferred on the supreme court.
The general policy of the law in this State has been to confine the contentious jurisdiction of the probate courts within narrow limits, leaving the practice there to be simple and generally free from such difficulty as would require the attendance of counsel and the expense of protracted trials. Questions relating to the interpretation of wills creating
We think the language used in the statute,.taking it all together, and looking to the general object and scope of the act, can mean no more than that, in order to preserve the trust property from loss, and put it in a condition to be profitable to the cestuis que trust, the judge may order it to be managed and disposed of in the hands of the trustees as he may think just and reasonable ; and that the statute was not intended to give the court of probate general equity jurisdiction to determine the construction of the will, decide who were entitled to the benefits of the fund, and in what proportions, and .enforce the execution of the trust according to the intent of the devisor.
The conclusion is, that the judge of probate had no jurisdiction of the petition, and that his decree must be vacated.