Eaton v. Eaton

• Decision Date: 04 January 1921
• Docket Number: No. 1702.,1702.
• Citation: 112 A. 383
• Parties: EATON v. EATON et al.
• Court: New Hampshire Supreme Court

112 A. 383

EATON

v. EATON et al.

No. 1702.

Supreme Court of New Hampshire. Hillsborough.

Jan. 4, 1921.

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

Bill by Emma L. Eaton and Emma L. Eaton, as guardian of Doris L. Eaton against Perry A. Eaton, Jr., and others. Questions transferred without ruling. Case discharged.

Bill in equity to reach funds held by the defendant Loveren, as executor under the will of Perry A. Eaton, deceased. The plaintiff, for herself and as guardian of her child, Doris L. Eaton, prays the court to order said executor to pay to plaintiff out of the estate of Perry A. Eaton the sum of $7,000, which sum was awarded the plaintiff in her divorce suit against Perry A. Eaton, Jr., as alimony and for the support of said child.

Perry A. Eaton, Jr., has been defaulted. The defendants made a motion that the action be continued pending an appeal which has been taken from the probate of the will. The questions as to the plaintiff's right to reach said funds and as to the power of the court to instruct, direct, or order the executor to pay the plaintiff said sum of $7,000 out of said estate are reserved and transferred without ruling.

Taggart, Tuttle, Wyman & Starr and L. E. Wyinan, all of Manchester, for plaintiff.

Warren, Howe & Wilson and De W. C. Howe, all of Manchester, for defendants.

PLUMMER, J. Perry A. Eaton by his will gave his son, Perry A. Eaton, Jr., a definite bequest, and also made him a residuary legatee. Relative to the legacies to his son the testator made the following provision:

"I direct, however, that all the property bequeathed or devised by me to my son Perry A. Eaton, Jr., shall be held in trust by my executor and be managed and controlled, invested and expended for the benefit of my said son as his needs may require, and at his decease I give, bequeath and devise the remainder thereof, if any, in equal shares to my granddaughter Doris L. Eaton, to my daughter Clara M. Eaton Favor and to my housekeeper Lydia J. Dow."

All that is bequeathed the son by the will is left in trust. The trust has not been established, and the executor is not yet, and may never be, a trustee under the will, because the son has appealed from the allowance of the will by the probate court upon the grounds that the testator was of unsound mind when he signed it, and also that the execution of the will was procured by undue influence.

The appeal is still pending. If the appellant prevails, and the will is found invalid upon either of the above grounds, the trust for the benefit of the son would fail, and there would be no further occasion for this action, and the bill would be dismissed. The court cannot order the...