56 A.2d 641 | N.H. | 1948
Although not expressly stated, the testator's purpose that during her life, his wife should have the beneficial use of his entire estate, except for $10,000 bequeathed to his sons, is readily apparent. Apart from these legatees, the only others who might share in the estate are designated not by name, but as members of a class, or as heirs or next of kin, and would take only in the event that the widow survived one or both of the sons. The residue, at the widow's death, is to be distributed among the testator's "then living issue in equal shares by right of representation," a phrase plainly descriptive of the testator's lineal descendants. Kimball v. Penhallow,
Despite broad discretionary powers conferred upon the trustees, the will contains no provision for the use of principal for the benefit of the widow. On the other hand, such use is not specificially [specifically] forbidden. It may fairly be assumed that the beneficiary's need of the principal was not anticipated because of a failure to foresee *26
changes which have occurred since the testator's death, including shrinkage in investment returns, decline in purchasing power, and the expense occasioned by the widow's extreme infirmity. The powers conferred upon the trustees as to investments and the allocation of receipts to income are indicative of a purpose to provide the widow with a liberal income, unrestricted by technical rules. No purpose to transmit any specific residuary amount to the sons or to any other issue is disclosed. Fairly construed, the will evidences as its primary purpose "ample and certain provision" for the testator's wife. Cf. Smith v. Fellows,
What is sought by the petition is not construction of any particular provision of the will, but rather authority to deviate from the provisions by which principal would be retained intact during the widow's lifetime. No reliance is placed by the trustees upon their general power "to do all things in relation to the trust which the testator could have done if living." The power is at best obscure in meaning, and if construed independently of other provisions, would have doubtful validity. Clark v. Campbell,
Where a remainder succeeding a life estate may ultimately vest in persons as yet undetermined and perhaps unborn, courts of equity have at times hesitated or refused to sanction an invasion of principal for the benefit of the life tenant. See Annotations, 39 A.L.R. 40; 46 L.R.A. (N.S.) 43, and cases cited. In one view, permission is sought to appropriate to the use of one beneficiary, the property of others without the consent of all. See, In re Van Deusen, (Cal.),
Traditionally, the courts of this jurisdiction have shown a signal regard for the intent of the testator (See Clark v. Campbell, supra), at times at the expense of other recognized principles deemed less *27
cogent in their application. Cf. Edgerly v. Barker,
In Brown v. Berry,
In the will before us, the testator's purpose to furnish reasonable support for his wife is not expressed in words, but it is nevertheless implicit in the disposition made of his estate. His direction that his wife should have the income was a means of executing his purpose, and is "properly to be read as subordinate to [his] paramount intention." In re Walker, (1901) 1 Ch. 879, 885. His intent to provide reasonable support to the widow being evident from the will, those whose interests are secondary to hers take subject to the execution of that intent. The remaindermen are deprived of no rights so long as rights which the life tenant was intended to have are not exceeded.
Because of circumstances not provided for by the will and obviously not anticipated by the testator, an emergency threatens accomplishment of his purpose by the means which he provided. Those whose interests are most immediate consent to the authorization sought by the trustees, and there is no objection by the guardian ad litem. *28
If the consent or acquiescence of the parties is not binding upon unborn contingent remaindermen, still they are sufficiently represented by those having like interests to be bound by a decree. 3 Simes, Future Interests, s. 676; 33 Am. Jur. 650, ss. 182, 183. Cf. Longworth v. Duff,
The trustees are advised that principal not in excess of $4,000 a year may be used to supplement the income of the trust, for the purpose of providing the widow with reasonable support, if the trial court shall find in accordance with the uncontroverted allegations of the petition, and it SHALL appear that the widow has no other income. In view of the discretion vested in the trustees by the testator, there is no reason why they may not safely be left to determine the amount of principal necessary within the limit specified, due regard being given to considerations of what is prudent and reasonable, and best calculated to accomplish the testator's purposes as a whole. Woodward v. Jolbert,
If the requisite findings are made, a decree in accordance with this opinion may be entered by the Superior Court.
Case discharged.
*29All concurred.