Devine v. Cote, 5797

• Decision Date: 26 November 1968
• Docket Number: No. 5797,5797
• Citation: 109 N.H. 235,248 A.2d 77
• Parties: Maurice F. DEVINE, Tr. v. Alpheage A. COTE et al.
• Court: New Hampshire Supreme Court

Page 77

248 A.2d 77

109 N.H. 235

Maurice F. DEVINE, Tr. v. Alpheage A. COTE et al.

No. 5797.

Supreme Court of New Hampshire.

Argued Oct. 2, 1968.

Decided Nov. 26, 1968.

Devine, Millimet, McDonough, Stahl & Branch and John S. Holland, Manchester, for plaintiff filed no brief.

Stein, Cleaveland & Rudman, Nashua, for Cote.

Danais & Danais and Thomas B. Wingate, Manchester, for defendant Conrad Danais, guardian of Leo Bouchard.

Leonard, Leonard & Prolman and Gerald R. Prunier, Nashua, for defendant Wesley Greeley.

KENISON, Chief Justice.

Petition for instructions by the plaintiff who is the successor trustee under the will of Mary Bouchard whose will dated January 18, 1935 was duly allowed. The parties submitted an agreed statement of facts. The Court (Leahy, C.J.) reserved and transferred without ruling the questions of law relating to the trustee's duties as to the disposition of the trust fund under the will for the benefit of testatrix's son, Leo E. Bouchard, who is and has been since World War I a mentally incompetent veteran.

The testatrix bequeathed the residue of her estate in trust for her son '* * * for his support, maintenance and education while the said Leo E. Bouchard is unable to manage his affairs, and when he is able to take care of his affairs then this bequest is to vest in him absolutely and in fee simple to him and his heirs forever; provided nevertheless that if the said Leo E. Bouchard should die before the termination of this trust, without leaving issue surviving him, then this bequest should go to my said sister, Julie Anna Cote nee Tremblay, to her and her heirs forever.'

The amount of the trust fund at the time the successor trustee was appointed in 1951 was approximately $7,700 and is now $20,000. During this period no payments have been made to the beneficiary, Leo, or his guardian. The amount of the guardian's fund is $60,000 and the guardian continues to receive monthly veteran's benefits. According to the agreed statement of facts this monthly payment ios $350 but this facts this monthly payment is $350 but this legislation. Prior to 1966 the beneficiary, Leo, was confined to a veterans hospital and the expenses of the guardian have been minimal but now Leo has been placed in a private nursing home at an average monthly expense of $700.

The agreed statement of facts contains the following statement: 'Insofar as distributions are made from the trust under the will of Mary Bouchard, the expectancy of the remaindermen of the trust estate is reduced. Insofar as distributions are made from the funds under the control of the guardian, the expectancy of the heirs-at-law of Leo E. Bouchard is reduced. Since the remaindermen under the trust and the heirs-at-law of the ward are not the same persons, the trustee and the guardian are in the position of favoring either the remaindermen or the heirs-at-law by the actions which they take. The trustee is in doubt concerning his duties under the trust instrument and for this reason has sought instructions from the Court.'

While it is certain that Leo has and will continue to receive such support and maintenance as he needs, his probable heirs at law on the one hand and the remaindermen under the trust on the other hand each claim that the other fund should bear the burden of paying for it. If there is any decision squarely in point it has eluded counsel and the court. We start with 2 Scott, Trusts (3d ed. 1967). s. 128.4, p. 1020: 'It is a question of interpretation whether the beneficiary is entitled to support out of the trust fund even though he has other resources. Where the trustee is directed to pay to the beneficiary or to apply for him so much as is necessary for his maintenance or support, the inference is that the settlor intended that he should receive his support from the trust estate, even though he might have other resources' (emphasis supplied). While the will is silent on this question, in 'all of these cases, if the intention of the settlor is not clearly expressed, resort may be had to all the circumstances in order to determine his intention.' Scott, supra, p. 1024. The size of the trust estate, the nature and extent of the other resources, the condition in life of the beneficiary, and the purpose of the trust are some of the circumstances that are important in reaching a decision. Rogers v. Munsey, 103 N.H. 37, 41, 164 A.2d 554; Munsey v. Laconia Home, 103 N.H. 42, 46, 164 A.2d 557; Amoskeag Trust Co. v. Wentworth, 99 N.H. 346, 111 A.2d 198; Indian Head Nat'l Bank v. Theriault,...