Adams v. Adams

• Decision Date: 11 March 1887
• Citation: 64 N.H. 224,9 A. 100
• Parties: ADAMS v. ADAMS and others.
• Court: New Hampshire Supreme Court

9 A. 100

64 N.H. 224

ADAMS

v. ADAMS and others.¹

Supreme Court of New Hampshire.

March 11, 1887.

Reserved case from Carroll county.

Appeal from a decree of the probate court appointing Charles P. Stone and John B. Garland trustees, tinder the will of Isaac Adams, deceased, upon the petition of the defendants Durward Adams and Elizabeth A. Ulman, beneficiaries of the trust. In the will Julius Adams, the appellant, and Anna R. Adams, now deceased, were named as trustees of the fund in question. The causes of the appeal and further facts appear in the opinion.

Julius Adams, for appellant.

T. J. Whipple, for appellees.

SMITH, J. 1. The plaintiff moves to dismiss the petition for want of service. By mistake, the original petition and order of notice, instead of copies, were left at his place of abode. The object of notice was to inform him of the pendency of the proceedings in the probate court, in order that he might appear and defend. The original papers gave him the same information that copies would. The law generally, if not always, regards the substance rather than the form of proceedings. In this case, as no possible harm was or could be done to any one by the mistake, justice does not require the dismissal of the petition for the reason assigned. A similar question was raised in several cases referred to in Lewis v. Lougee, 63 N. H. 287.

2. The plaintiff also moves to dismiss for want of jurisdiction in the probate court. The judge of probate has jurisdiction to appoint a trustee in the place of one who declines the appointment, or is removed or resigns, and may remove a trustee who has become "disqualified for the discharge of the trust, by becoming insane or otherwise incapable, or evidently unsuitable for the execution of the trust." Gen. Laws, c. 205, §§ 5,7. The plaintiff did not formally and expressly decline the trust; but his refusal for more than two years after the decease of the testator, and for more than two months after the order of the supreme court affirming the probate of the will, to take any steps looking to his appointment, or to file a bond, or take possession of and manage the trust property, or enter into any arrangement when applied to by the beneficiaries during the contest over the will, by which they might receive an allowance from him or from the income accumulating in the hands of the executors, and his suffering the buildings to become out of repair and untenantable, and the land to be sold for non-payment of taxes, are acts inconsistent with any purpose on his part to accept the appointment, and properly discharge the duties of the trust, and are equivalent to a declination of the trust. His payment of small sums of money to his mother and sister while the contest upon the will was pending was not done in the execution of the trust. He expected to be reimbursed from their shares in the estate when they should come to realize them. The money was in fact loaned. He did not at the hearing in either court claim that he had accepted the trust, and he does not now offer to accept it. A declination need not be express. It may be inferred from acts or conduct. Cloutman v. Pike, 7 N. H. 210; Johnston v. Wilson, 2 N. H. 202.

Upon a petition for his removal, the plaintiff might be removed, if he had accepted, it appearing that he is an unsuitable person for the execution of the trust. That fact is expressly found, and all the facts show it. It would be the duty of the court to remove him. His complaint here is that others have been appointed trustees instead of him. This petition proceeds upon the ground that the office is vacant. It sets forth that, in and by the will, "certain property, both real and personal, was devised in trust for the benelit of the petitioners and their families, and certain persons were named in said will to hold and manage the same as trustees in a manner directed in said will, one of whom is deceased, and neither of whom has been appointed to said trust; and the surviving party named in said will as trustee has failed to qualify as required by law, and is otherwise ineligible to receive the appointment; and the petitioners are cestuis que trust named in the will." The prayer is "that such suitable person or persons, as to the court may seem just and right, be appointed their trustee or trustees, upon filing such bonds as the court may order." Upon the facts shown, the judge of probate and the supreme court at the trial term were justified in treating the office as vacant, and in appointing another person to execute the trust in place of the plaintiff.

3. The ruling of the court at the trial term to proceed with the trial without passing upon the defendants' demurrer presents no question open to revision at the law term. That question, like many others which are mere matters of practice, is necessarily determined at the trial. Owen v. Weston, 63 N. H. 599, 4 Atl. Rep. 801. But, if the question can be regarded as an open one, it is certain a trial of the case upon its merits could not injure the plaintiff, for, if the trial should result in his favor, the demurrer could then be considered, the costs being regulated as justice might require; and, if the result should be against him, there would be no occasion to pass upon the demurrer. An exception to a ruling by which a party is not harmed cannot be sustained.

4. The cause having been continued nisi, the trial court had jurisdiction of the same during the vacation following the close of the term of that court. Strafford Bank v. Cornell, 2 N.H. 324, 329; Shapley v. White...