Concord Nat. Bank v. Town of Haverhill

• Decision Date: 07 October 1958
• Citation: 101 N.H. 416,145 A.2d 61
• Parties: CONCORD NATIONAL BANK, Trustee, v. TOWN OF HAVERHILL et al.
• Court: New Hampshire Supreme Court

Page 61

145 A.2d 61

101 N.H. 416

CONCORD NATIONAL BANK, Trustee, v. TOWN OF HAVERHILL et al.

Supreme Court of New Hampshire.

Argued Sept. 3, 1958.

Decided Oct. 7, 1958.

Sulloway, Hollis, Godfrey & Soden, Concord, for plaintiff, furnished no brief.

Harold K. Davison, Woodsville, for defendant town of Haverhill, furnished no brief.

Luigi J. Castello, Woodsville, for defendant town of Bath, furnished no brief.

Cotton, Tesreau & Stebbins, Lebanon, and William R. Johnson for defendant Trustees of Dartmouth College.

Ernest R. D'Amours, Director of Charitable Trusts, Manchester (by brief), pro se.

KENISON, Chief Justice.

In this jurisdiction the allowance of attorneys' fees has developed slowly and generally speaking has not been as liberal as in our neighboring states. Kimball v. New Hampshire Bible Society, 65 N.H. 139, 160, 23 A. 83, 85; Guay v. Brotherhood Building Association, 87 N.H. 216, 221-222, 177 A. 409, 97 A.L.R. 1053; Richter, Probate Fees: The Story of a Remedial Statute, 32 B.U.L.Rev. 54, 60 (1952). Counsel fees were not allowed in Brochers v. Taylor, 83 N.H. 564, 572, 145 A. 666, 63 A.L.R. 874, but in that case it is to be noted that they were sought by parties contesting the validity of a charitable trust. Parties seeking to defeat a charitable trust are not entitled to an allowance out of the trust estate for their counsel fees. The rationale for this rule was explained in Adams v. Page, 76 N.H. 270, 272, 81 A. 1074, 1075: 'From the foregoing recital it appears that the course taken by the heirs was not for the protection of the trust fund and as an aid to the trustees in carrying out the purpose of the testatrix, but was an unsuccessful attempt on their part to have the bequest to the trustees declared void, the fund turned over to themselves as heirs at law, and to defeat the testator's general purpose to provide hospital accommodations for the people of Franklin and vicinity. Under such circumstances the defeated party is not entitled as [a] matter of law to recover costs of his adversary, or to be reimbursed for costs and expenses out of the trust fund. Indeed, the case presents no legal or equitable ground in support of their contention.'

The situation with respect to the educational and charitable trust in this case is a fairly common one in that some of the subordinate and secondary conditions of the trust resulted in unused and accumulated income tending to frustrate the primary purpose of the trust. The Court in its decree found 'that in order for the income of the Bartlett fund to be more fully utilized in promoting the testators' primary purpose of assisting needy and worthy students from the towns of Haverhill and Bath at Dartmouth College, certain secondary restrictions on the use of income must be relaxed by applying the principles of cy pres.' Whether the Court's decree in this case was an application of cy pres (III Scott, Trusts (2d ed. 1956) § 399) or only the application of the doctrine of deviation (III Scott, Trusts (2d ed. 1956) § 381; Exeter v. Robinson Heirs, 94 N.H. 463, 466, 55 A.2d 622) is of no consequence in determining the question of allowing counsel fees since the rule would be the same in either case. Our cases have indicated that the allowance of counsel fees in a petition for instructions involving a testamentary trust have not been limited to those of the trustee. See Bean v. Bean, 74 N.H. 404, 68 A. 409. 'A necessary expense of protecting or managing a trust fund, whether incurred by the trustee or by the beneficiary may be charged upon the fund.' N.H.Anno. Restatement, Trusts, § 244, comment c. Burke v. Concord Railroad Corp., 62 N.H. 531.

While it is true that the towns of Haverhill and Bath and Dartmouth College are not direct beneficiaries of the charitable trust, it cannot be doubted that they had an interest in the bill for instructions. Strictly speaking, these defendants did not create, establish, preserve or maintain the trust but, along with the Director of Charitable Trusts, they participated in working out a plan which enabled the educational trust to function effectively and efficiently under modern conditions. While there are no cases on all fours, the defendants' participation in the litigation can be considered a service to the trust and an aid to the Court which is sufficient to support a discretionary allowance of counsel fees by the Superior Court. Vanderbilt University v. Mitchell, 162 Tenn. 217, 36 S.W.2d 83; Burke v. Concord Railroad Corp., supra; Wemme v. First Church of Christ, 110 Or. 179, 219 P. 618, 223 P. 250. See Rollins v. Rice, 59 N.H. 493, 498; Lees, 'Governmental Supervision of Charitable...