Demeritt v. Young

• Decision Date: 30 June 1903
• Citation: 55 A. 1047,72 N.H. 202
• Parties: DEMERITT et al. v. YOUNG et al.
• Court: New Hampshire Supreme Court

55 A. 1047

72 N.H. 202

DEMERITT et al.

v. YOUNG et al.

Supreme Court of New Hampshire. Strafford.

June 30, 1903.

Transferred from Superior Court; Young, Judge.

Bill in equity by Joseph L. Demeritt and another, trustees of the will of Emerson Furber, deceased, against one Young and another for the construction of the will. Facts agreed, and case transferred from the superior court. Case discharged.

The plaintiffs are the trustees named in the will, who now hold the estate in that capacity. Mary Furber, the widow of the testator, died in November, 1901, and Ann Leighton, his daughter, died in March, 1901. Frank, his son, is now living, but is, and has been since a long time before the testator's death, non compos mentis. His mental incapacity is permanent and incurable, and was known by the testator to be so when he made his will. The defendant Leighton, at the death of the testator, was the sole survivor of his nephews and nieces. The will provides as follows:

"Second. I give, bequeath, and devise unto my beloved wife, for and during only the term of her natural life, the one-third part of all my estate, both personal and real, wherever found or however situated; at the decease of my beloved wife, the aforesaid estate is hereby bequeathed and devised to Joseph L. Demeritt and Eli Header, in trust for the support and all necessary expenses in sickness and health, at all times and under all circumstances, for the welfare and comfort of my two children, Ann Leighton and Frank Furber, during their natural life; at the decease of the aforesaid children, Ann Leighton and Frank Furber, the aforesaid estate remaining in the hands of the trustees to be equally divided between the nieces and nephews of Mary Furber.

"Third. I give, devise, and bequeath all the rest and residue and remainder of my estate, real, personal, or mixed, of every name, nature, and description, wherever found and wherever situated, to Joseph L. Demeritt of Farmington and Eli Meader of Rochester, and their successors, in trust for the following purposes: To carry on, manage, and improve all my said estate to the best advantage, and take care of my personal estate, and invest the proceed of all my said estate, with power to sell at private or public sale a part or all of my real estate, whenever the best judgment of the trustee it is most expedient and for the interest of my estate so to do, make the money so received from such sale or sales a part of said investment.

"Fourth. To pay out of and from the net income, to my daughter, Ann Leighton, all the money said Ann Leighton, to make good and ample provisions in sickness and health, care, comfort, or support at any boarding place said Ann Leighton may elect, and two hundred dollars per annum in cash, if she so elects, or any part thereof.

"Fifth. To pay out of and from said net income of my estate to my son, Frank Furber, during his natural life, all the money that may be actually necessary for his comfort and support in sickness or health, at such times and such places as may be expedient, under all circumstances, relative to justice; look after said Frank, with a diligent exercise of your best powers relative to good care and no abuse.

"Sixth. In case of the death of either of my children, Frank Furber or Ann Leighton, the interest of the one deceased, the interest of the one survives the other. The longest liver takes all.

"Seventh. Should Mary Furber survive Ann Leighton or Frank Furber, either or both of them, the estate of the deceased shall be the estate of Mary Furber during her natural life, and no longer, and then to be equally divided between the nieces and nephews of Emerson Furber."

The trustees Submit the following questions:

"First. Whether or not the said trustees shall pay to said Frank Furber the whole income of said estate, including the one-third part of the income given to said Mary Furber, widow, now deceased; or, if not, what disposition shall be made of income not paid to said Frank.

"Second. If the income of said estate is not sufficient for the support of said Frank Furber, whether or not said trustees may pay for his said support any sum or sums out of the principal of said estate.

"Third. Whether or not, under the seventh section of said will, any portion of the principal of the estate should be at once paid to said William S. Leighton, as only surviving nephew of said Emerson Furber, him surviving; and, if so, what portion.

"Fourth. Whether or...