Clyde v. Lake

• Decision Date: 02 January 1917
• Citation: 78 N.H. 322,100 A. 552
• Parties: CLYDE v. LAKE et al.
• Court: New Hampshire Supreme Court

100 A. 552

78 N.H. 322

CLYDE

v. LAKE et al.

Supreme Court of New Hampshire. Hillsborough.

Jan. 2, 1917.

Transferred from Superior Court, Hillsborough County; Branch, Judge.

Bill in equity by George W. Clyde, trustee, against Harry F. Lake, administrator, and another, to determine the right to a fund in the hands of plaintiff. Case transferred by the superior court without ruling. Plaintiff advised to pay the fund to defendant J. Joseph Doherty, as administrator of the estate of Andrew N. Freeman. Case discharged.

Bill in equity by the plaintiff, as a trustee under the will of Annie M. Freeman, against Lake, as the administrator de bonis non of Mrs. Freeman's estate, and against Doherty, as the administrator of Andrew N. Freeman's estate, Andrew being the son of Mrs. Freeman. The question presented arises under the fourth clause of the will, which is as follows:

"Fourth. All the rest and remainder of my estate, whether real or personal, that I may be possessed of at my decease, I Rive, bequeath and devise to George W. Clyde, of said Hudson, in trust, for the following purposes. So much of the interest or income, or if necessary, a part of the principal, to be used by said trustee for the support of my said son Andrew N. Freeman,' meaning that said trustee shall invest such funds as may come into his hands as a part of my estate, and at his discretion may use the same for the comfortable support of my said son, Andrew, for board, clothing, medical attendance or medicine, or any other thing that may be necessary or proper for his welfare and comfortable support. But such trustee shall not pay to said Andrew any of the money of my estate or shall furnish him any intoxicants except for medicinal purposes, when ordered by a respectable physician."

Mrs. Freeman died April 21, 1904, and Andrew October 31, 1915. The administrator of her estate upon the settlement of his account turned over to the trustee the balance in his hands, which the trustee used for the support of Andrew until his death. Upon the settlement of the trust it appeared that the unexpended balance amounted to $3,441.65. This sum is now claimed by each of the defendants.

George W. Clyde, of Nashua, pro se. Foster & Lake, of Concord, for defendant Lake. John J. Doherty, of Concord, pro se.

WALKER, J. By the residuary clause of the will it is apparent the testatrix intended to provide for the reasonable support of her son. This was her controlling purpose in creating a trust fund and authorizing the trustee to use the same for the comfortable support of her son. She omitted to use language indicative of a purpose to specifically limit his interest in the trust to such part as the trustee might in his discretion appropriate to his support and to dispose of the unexpended balance remaining upon the son's death to other beneficiaries. It is not probable that she...