| Vt. | Mar 15, 1857
The opinion of the court was delivered by
It seems in this case, that one Azuba Simons, who was an insane pauper, and chargeable to the town of Sharon, where she had a legal settlement, became in equity, the devisee, under her mother’s will. By the terms of the will, her mother bequeathed to her son Joel all her estate, real and personal, which comparatively was a small amount, to be held by him in trust, and to apply such sum, as he should judge right and equitable, yearly, for her support, provided the town of Sharon would pay a reasonable sum yearly, so that the insane daughter could live with her friends. The will provides for the discharge of the trust, in this way, so long as the daughter shall continue insane ; and in case she became sane and well, she was at once to be paid whatever should then remain of her mother’s estate, and in case of the death of the insane daughter, whatever remained in the hands of the trustee was to be divided equally among the heirs of the mother.
The object of this bill is to obtain a decree against the trustee to pay to the town the annual interest of the trust fund, and such part of the principal as the chancellor shall deem meet, to be applied to the support of the insane girl, or to such person as the chancellor shall see fit.
The first question to be disposed of is this: Have the town any such interest under the will as to enable them to maintain this bill ? It is made a statutory duty upon every town to support their own poor, and if the pauper has kindred within a certain degree of consanguinity, living within this state, of sufficient ability to support such pauper, the town, by a proceeding for that purpose, may cause them to be assessed by the county court in such sum as the court shall judge reasonable for or towards the support of the pauper.
She is the cestui que trust, under the will, and not the town of Sharon, and she, by her guardian, would have been the proper person to call the trustee to an account. The provision made for this pauper, under the will of her mother, was a gratuity and such as the town had no right to claim, and it creates no privity between the town and the cestui que trust under the will, and much less is there any privity between the town and the trustee. He can not be regarded as the trustee of the town, and if not, it is difficult to see how the town can, in their own name, come into a court of equity to call him to an account. It is well settled, that a creditor “filing a bill against an executor ” can not make a debtor of the estate a party, nor can a legatee institute a suit against the debtors to the testator’s estate, to compel them to pay their debts to him in satisfaction of his legacy. Yet in such a case the legatee, as well as the creditor, has an interest in the estate of the testator, and a right to have it applied to answer his demand, yet it must be done in a due administration on the estate, and the reason for this is, that the executor’s or administrator’s power over the estate is exclusive.
But in the case before us, the town have no equitable right to the fund. The trust is created by the will of the mother, for the benefit of the daughter, and if this fund created a means of support for the daughter, that might be a good reason why she should not be chargeable to the town.
If it is only sufficient to furnish a support in part, that may be a good reason why the town should only make up the balance necessary for her support. The case is the same in principle, as if the pauper was not insane. If the trustee did not faithfully perform the trust, a guardian might be necessary in the present case to compel it to be done.
It is evident, that the will in this case gives to the trustee a discretion as to the sum to be applied to the support of the girl. He is to judge what sum will be right and equitable for him to pay. He has in this case exercised his judgment, and there can be no pretence, from the evidence, but what he has acted honestly and according to his best judgment, and without any sinister motive.
In such a case it will not do for a court of equity to assume the ground that they will examine into the accuracy of the conclusion come to by the trustee in the exercise of a sound discretion given him. This would be to change the character of the trust very materially.
If then, the town had made out an equitable lien upon this fund, which they have not done, their right, as to the sum to be applied, must depend upon the sound discretion of the trustee, and thei'e is no sufficient ground shown in the case why this court should override the exercise of that discretion. I apprehend, for one, that the pauper has such an interest in this controversy as to have been entitled to be made a party to the bill; but this is of no importance, as the bill is to be dismissed for want of equity.
The decree of the chancellor, dismissing the bill, should be affirmed, with costs, and the case is remanded to the chancellor with directions to enter a decree accordingly.