Smith v. Greeley

30 A. 413 | N.H. | 1892

By conferring upon the trustee the power to convert the real estate devised into money at his discretion, the testator indicated a purpose to provide a fund, the income of which, and so much of the principal as the trustee might consider necessary, should be applied to the support and maintenance of his son, James C. Greeley, or his family, and that the trustee should terminate the trust by transferring whatever of the fund remained to James C. Greeley and his heirs when he considered it advisable to do so. The trust estate set apart by the testator for the support of his son, or his son's family, was chargeable with that support to the extent deemed necessary by the trustee; and the conversion of the trust property into money being in the discretion of the trustee, it was immaterial whether it took place before or after the support was furnished. It was the duty of the trustee to adopt the course most beneficial to the estate, and in the exercise of his judgment he advanced the money needed for the purposes of the trust upon the credit of the trust estate. The trustee is entitled to be reimbursed for the money advanced by him, and for this purpose, in the exercise of the authority vested in him by the terms of the trust, he may sell a part or the whole of the trust property. If the money loaned by Chase to Greeley for the support of himself and family was furnished at the trustee's request, it stands upon the same footing as the money advanced by the trustee, and the trustee is authorized to repay it from the trust fund. If it was not furnished at the request of the trustee, it is like any other claim for necessaries furnished for the reasonable support of James C. Greeley or his family, if there is any such, and such claim may be paid by the trustee if in his judgment the support furnished was reasonable and necessary.

By the word "family" we think the testator meant to include any wife, child, or children of James C. Greeley. Townsend v. Townsend,156 Mass. 454, 456. In wills, the word "family" ordinarily means next of kin, and there is nothing indicating that it was used in a different sense by the testator. The trustee is authorized to pay for the maintenance of Lewis J. Greeley by his grandmother, at Lowell, whatever sum she is reasonably entitled to receive in the judgment of the trustee. It does not appear that the support was furnished with the expectation of being repaid from the trust fund.

It is apparent that the testator considered the possibility of the termination of the trust in the lifetime of his son, from the provision empowering the trustee to convey the property to him whenever he should think it prudent or advisable to do so. Aside from the fact that the discharge of the trust is vested in the discretion of the trustee, there is nothing indicating a purpose to continue it beyond the life of James C. Greeley. The judgment of the trustee is to determine when it shall cease. Unless the circumstances require its continuance, the trustee may close the administration of the trust and make distribution of the residue whenever he deems it advisable. If the situation is such in the judgment of the trustee as to require the continuance of the trust, the income should be applied to the support of the family of James C. Greeley, including the widow and all of the children. Of distribution is made, it should be according to the statute of distribution of personal estate, — one third to the widow, and the remaining two thirds divided equally among the five children of James C. Greeley

Case discharged.

CARPENTER, J., did not sit: the others concurred.