Abbott v. Abbott

• Decision Date: 07 November 1911
• Citation: 81 A. 699,76 N.H. 225
• Parties: ABBOTT v. ABBOTT et al.
• Court: New Hampshire Supreme Court

81 A. 699

76 N.H. 225

ABBOTT

v. ABBOTT et al.

Supreme Court of New Hampshire. Belknap.

Nov. 7, 1911.

Transferred from Superior Court, Belknap County; Plummer, Judge.

Petition by E. G. Abbott, administrator, against Emma J. Abbott and F. W. Fowler, trustee, for partition. Transferred without ruling from the superior court on an agreed statement of facts. Petition dismissed.

The will of the mother of Emma J. Abbott, one of the defendants, which has been duly proved and allowed, contained the following clause: "Fifth. I give, bequeath, and devise to my executor hereinafter named, in trust for the benefit of my daughter, Emma J. Abbott, the one half of the dwelling-house situated at No. 17 Laurel street, at Lakeport, in Laconia, N. H., said trustee to expend the income thereof, at such times and in such amounts as may in his judgment seem best, in paying for the comforts and necessaries of life for the said Emma J. Abbott's personal use, first using from said income whatever may be required to keep said property in good and sufficient repair; and I authorize said trustee, whenever it may appear in his judgment for the best interests of my said daughter, to sell said property, execute a good and sufficient deed to the purchaser thereof, and to pay the proceeds of said sale, after deducting the lawful fees and expenses therefrom, to my said daughter, for her sole use and disposition. In the case of the death of my said daughter before the sale of said property, the same to go to said Arthur D. and Edgar H. Elkins in equal shares." The defendant Fowler is trustee under the will, but has not expended any of the income for the benefit of Emma. He has not sold the property and does not intend to do so. Emma owns in fee one-half of the dwelling house above described, which has been set off to her as her homestead. The plaintiff having an unsatisfied execution against Emma, her interest in the realty devised by the fifth clause of her mother's will was duly seized and sold thereon, and was purchased by the plaintiff, who asks that his share in the real estate may be set off to him in severalty.

James A. Broderick, for plaintiff.

Cox & Fowler, for defendants.

PARSONS, C. J. Considering all the language employed by the testatrix to declare her purpose, it is plain she did not Intend to devise the half of the dwelling house claimed by the plaintiff under the execution sale to her executor merely for the use of her daughter. If this conclusion might be drawn from the first part of the devise, where the property is given to the executor in trust for the benefit of the daughter, it cannot be when the language used to define the duties and powers of the trustee is considered. The trustee is to administer the income, and must have possession and control of the property to collect the rents and make repairs, and has power to sell...