93 Vt. 404 | Vt. | 1919
This is an appeal from a decree of the probate court for the district of Addison upon the settlement of the account of J. IT. Lucia as trustee of a fund created under the will of Charles N. Hayward. The decree charged the trustee with the full amount of the principal of the trust fund and disallowed the major part of his claimed credits. On appeal the county court affirmed the decree, and the appellant brings the case here on exceptions to this judgment.
Charles N. Hayward, in life a resident of Bridport, Vermont, died testate in 1874. By his will he gave to his widow Susan E. Hayward, the use of all. his real estate in the town of Bridport during her natural life. After making specific bequests of $1,000 each to five benevolent societies, he provided for his only daughter as follows: ‘ ‘ The rest, residue and remainder of all my estate both real and personal I give to my daughter, Emma C. Eldridge, during her natural life, and if she should die leaving no children, it is my will that her share of my estate
The executor of the will proceeded to settle the estate, and in 1886 petitioned the probate court for permission to sell the Bridport real estate “for the purpose of putting the avails of said estate in the hands of a trustee.” Mrs. ITayward, Mrs. Eldridge, and all other parties in interest joined in the petition and formally consented to the sale. The petition was granted, the real estate sold, and Mr. Lucia appointed trustee of the avails. Mrs. Hayward died in 1899. In September, 1903, the trustee filed an inventory in which he gave the amount of the fund as $5,000, after deducting from the avails of the sale $250, which included the expenses of the sale, his services and expenses as trustee to date, and $100, “allowed Mrs. Eldridge.” Shortly after the sale the trustee loaned the proceeds to Mrs. Hayward taking her note therefor without interest secured by a trust deed of land in Colorado. The court finds that the trust fund has remained invested on the security of this mortgage deed of trust since May 10, 1887, and that Mr. Lucia’s estate has not in its possession, and has- not had, any part of the fund except as represented by said deed of trust. Mrs. Eldridge is in possession of the mortgaged real estate.
In 1904 Mrs. Eldridge preferred a petition to the probate court in which she alleged that all or a substantial portion of the trust fund was required for her support and comfort under the will, but that the trustee declined to turn over any portion thereof to'her without the order and direction of the court, and asked that the court order the fund or a portion thereof applied to her support and comfort. This petition was dismissed by the probate court, appealed to the county court by the petitioner, and there dismissed without prejudice. In December, 1914J Mrs. Eldridge brought a similar petition to the probate court in which she alleged, among other things, that the funds arising from the sale of the real estate were in the hands' of Mr. Lucia as trustee to the amount of $5,000; that the principal of the fund had been loaned by him to her mother and was invested in the real estate at Colorado; and that the trustee declined to turn over to her
The appellee, who is the new trustee, pleaded, among other things, the decree of March 4, 1915, in bar of the appellant’s claim to a credit for the principal of the fund as paid over to Mrs. Eldridge by Mr. Lneia from time to time during the term of his trusteeship. The findings of the court are silent as to whether a decree of distribution has ever been made by the probate court in the settlement of Charles N. Hayward’s estate. From the fact that the appellee relies only upon the decree of March 4, 1915, and our attention has been called to no other, it is fair to assume that there has been no other decree defining the rights and estate of Mrs. Eldridge under the residuary clause of the will. Proceeding upon the theory, as the parties have done,' that the construction of this clause of the will is an open question, except possibly for the decree of March 4, 1915, we find it more convenient to consider the questions in the order of their treatment by the appellant in her brief.
The appellant contends that ■ under the residuary clause of the will Mrs. Eldridge took the residue absolutely and in fee, and that the attempted gift over to the benevolent societies is repugnant and void. It is argued that the provision, “meaning that my daughter may use whatever of said estate may be necessary for her support and comfort,” gives such power of disposition and consumption as to make the gift to Mrs. Eldridge absolute and the attempted gift over void. Counsel recognizes the doctrine of our cases that a limited power of disposal, as for necessary support, is consistent with a life estate only in the first taker, but argues that the addition of the word “comfort” changes what would otherwise be a limited power to a general power of disposal. The claim is made that the case at bar is like Stowell v. Hastings, 59 Vt. 494, 8 Atl. 738, 59 Am. Rep. 748, where, construing the provision of a will giving to the testator’s wife the residue of the estate “for her benefit and support, to use and dispose of as she may think proper,” and providing that if any of the estate should be left in the wife’s possession at her death it should be divided between the testator’s
We hold that Mrs. Eldridge took a life estate in the residue and not a fee. This disposes of the appellant’s main contention. But she claims that, if the will did not give Mrs. Eldridge an absolute estate in fee, when the trustee has turned over all of the principal and the same has been received by Mrs. Eldridge as necessary for her support and comfort, the trust has been fulfilled, and is thereby terminated. It is a sufficient answer to this claim to say that it is unsupported by the findings. It is unnecessary to consider how it would be if the court had found that the trustee had in good faith paid the principal of the fund to
These views result in overruling appellant’s exceptions, and make it unnecessary to consider the appellee’s contention that her claims are barred by the decree of the probate court of March 4, 1915, set out in the findings.
Judgment affirmed, and ordered certified to the probate court.