Wheeler v. Perry, 18 N.H. 307

Wheeler v. Perry

18 N.H. 307 | Superior Court of New Hampshire | 1846

Parker, C. J.

The bequest to Henry Perry is of the income of certain shares in several corporations during his life, the shares upon his decease being given to his heirs. The will appoints no trustee to hold the shares during his life time, but as the income only is given to him, he is not entitled to take the shares himself; a trust is therefore constituted, and the executor is the trustee.

The case presented, then, is that of an executor who is trustee, seeking the order and direction of the court in relation to the construction of the will of his testator, by which a trust is constituted respecting which there are conflicting interests. Hpon the true construction of the will depends the solution of the question, who is entitled to a portion of the property which has come to the hands of the executor upon a dissolution of the corporation, shares in which formed part of the subject matter of the trust; and perhaps, also, relief against the guardian of the cestui que trust, if it shall appear that certain sums which have been received by him are part of the trust fund, and have been paid to him by mistake.

This court has general jurisdiction in equity in cases of trusts. If, therefore, it is part of the jurisdiction of a court of equity to receive an application, by a trustee, for a decree which shall aid and direct him, by an adjudication upon conflicting claims involved in the administra*312tion of the trust, so that he can proceed with safety in the care and distribution of the trust funds, then there is no doubt respecting our jurisdiction over the whole subject matter. And even if no such jurisdiction existed, there seems to be no doubt that the question whether the guardian of Henry Perry is entitled to hold certain sums which have-been paid to him, as the property of his ward, or whether they are a part of the trust funds, and paid to him through a mistake respecting their character, so that he is accountable for them to the plaintiff, to be held as a part of the trust, is one over which the jurisdiction of the court is unquestioned.

The case upon the first point is not one' of frequent occurrence, but in that particular the jurisdiction seems to be sustained.

Executors and administrators are often spoken of as trustees, in reference to the interest of heirs and legatees,, and the creditors of the estate, and their duties and obligations have substantially the character of those of a trustee, so far as the rights and-interests of such parties are concerned. If an executor may apply to the court for aid and direction in relation to the settlement of the. estate, it would seem that one who is technically a trustee may do so in ’ like manner; and in this case the plaintiff is executor and trustee also.

It is said that an application for aid and relief in the administration of estates is sometimes made by the executor or administrator, when he finds the affairs of the testator or intestate so much involved that he cannot safely administer the estate, except with the aid of a court of equity. In such case it is competent for him to institute a suit against the creditors generally, for the purpose of-having all their claims adjusted, and a final decree settling the order.and payment of the assets. 1 Story’s Eq., sec. 544. It has been objected to this jurisdiction, that it may he used by executors and administrators to keep creditors *313oat of their money; but the court can judge whether the case is one which, from the difficulty of determining the rights of the parties, requires its intervention, and can generally correct any attempt at a misuse of the right. In Comyn’s Digest, Chancery, 3-6, we find, — “ The most safe way for the payment of legacies by an executor is to take the direction of the court of chancery” ; as if it were a matter well settled that he might do so.

This case comes within, the principle of these authorities ; and it may be added that it is to some extent in the nature of a bill of interpleader, as it seems to settle conflicting claims which might otherwise involve the executor and trustee in great loss.

In Parsons v. Parsons, 9 N. H. Rep. 309, which has been referred to in the argument, it was found that the jurisdiction which was invoked was exercised in England, neither under the head of trust or fraud, but was a particular jurisdiction, which had grown up, step by step, in the courts there, and was not within the grant of jurisdiction in our statute.

As to the direction asked respecting the mode of investment ; the court may give directions by a general rule, or in the specific case.

In regard to the construction of the devise to Ilenry Perry it appears to be conceded that the testator regarded the increase in the value of the shares in the Locks and Canal company as an increase of the capital, and not as income. The corporation so regarded it, making dividends of income from time to time before the vote to sell their property, — upon what precise principle does not appear, nor is it material to the decision of this case.

The testator, when he made his will, appears not to have contemplated the dissolution of the company, having made no provision for such an event. But he gave the income of the shares as they then stood, being of about the value of $1500 each, to his son Henry, and *314the shares, on Henry’s death, to his heirs. When the corporation voted to sell their property and divide the proceeds, they seem to have ceased making dividends of income, and to have commenced making dividends .of the capital as fast as the property could be sold and the proceeds realized. The subsequent dividends, then, must be regarded as the proceeds of the shares themselves, the same as if the shares had been sold ; and what has been, and what shall be, thus received is substituted for the shares, forming a fund, of which Henry Perry is entitled to the income during his'life, his heirs being entitled to the principal upon his decease.'

The sums which the guardian has received are trust funds, which do not belong to his ward, and which of course must be repaid to the plaintiff, to be held by him for the purposes of the trust.

Decree, — that said Henry Perry is entitled, by the will of his father, Justus Perry, to the use and income of all the sums received on account of the division of the capital stock of the Proprietors of the Locks and Canals on the Merrimack river; that the executor of said will is trustee, to hold the said sums so- received, and may invest the same in the purchase therewith of stocks of the United States, or treasury notes of the United States, bearing six per cent interest, or the stocks of any of the States which have uniformly paid ■ their bonds and obligations, and the interest thereon, when the same became due ; or he may deposit the sum in any savings bank which is in good credit, or lend the same on good security, by note and mortgage, and may and shall pay over the income thereof to the person entitled to receive the same.

And it is further ordered and decreed, that the said Charles Lamson, guardian as aforesaid, pay over to the said executor all the money remaining in his hands, received by him on account of the division of the capital stock aforesaid.