16 N.H. 459 | Superior Court of New Hampshire | 1844
We are by no means clear in this case that the marriage so far changed the relations of Mrs. Dow, that she could not execute the trusts of the will. This was a personal trust and confidence reposed by the testator in his wife. He reposed confidence in her discretion ; he evidently considered her relation as a mother to her children, and deemed it important that she should be entrusted with the management of their pecuniary affairs and the application of the means they afforded to the purposes of education, intrusted also to her judgment.
That it was a matter of personal trust and confidence, appears also from the fact that she was by the terms of the will to dispose of the property at her discretion for her own support. It would be difficult without contravening the express provisions of the will to- appoint a
Now if she and her husband had given bonds for the faithful execution of the trust, there appears no reason why the intention of the testator might not have been reasonably fulfilled, as well after the marriage as before. A reasonable discretion must be exercised, and the property must not, under the color of the discretion conferred by the will, be wantonly expended. Against this, provision could be made and security taken, as well after the marriage as before. 2 Story’s Eq., sec. 1068 ; do., sec. 1287.
But however this may be, the Revised Statutes, oh. 168, secs. 1-8, provide that where property is devised in trust for any minor or other person, the trustee shall give bonds for the purposes named in the statute, unless the testator has directed that no such bonds shall be required. And if the person appointed trustee shall neglect or refuse to give the required bonds, he shall be considered as having declined the trust.
The decree of the Judge of Probate must therefore be reversed, and the case remanded to that court for proceedings in conformity with this opinion.
Decree reversed.