Fowler v. Hancock
| Decision Date | 01 March 1938 |
| Citation | 197 A. 715 |
| Parties | FOWLER v. HANCOCK et al. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Belknap County; Young, Judge.
Petition for instructions by Frederick W. Fowler, successor trustee under a will, wherein Frederick L. Hancock and another filed an answer. Questions of law raised by petition and question of decree to be entered transferred without ruling.
Case discharged.
Petition, for instructions, by a trustee under a will. The will left property to a named trustee "to hold, use, enjoy and expend for the benefit" of the testator's brother while he lived "in such manner and at such times as she [the named trustee] shall deem proper," with provision for the distribution of the estate remaining unexpended at the brother's death. The named trustee resigned her trusteeship and the plaintiff is her successor. The brother has two minor children and is unable to support them. The plaintiff seeks instructions as to his right and duty to contribute to their support.
The brother by his answer takes the position that the discretion vested in the named trustee was personal and could not pass to the plaintiff as her successor, and that in any event no part of the trust estate may be used for his children's support without his consent.
The trust estate included a homestead farm, other real estate, and personal property. The brother has conveyed his interest in all of it to the plaintiff to hold in trust for the purposes stated in the trust created by the will. By his answer the brother claims that the testator did not intend that the named trustee should do more than to hold title to the trust property, but did intend that he was to occupy and carry on the home farm.
The questions of law raised by the petition and "as to what decree should be entered in the matter" were transferred without ruling by Young, J.
Tilton & Tilton, of Laconia, for plaintiff. Napoleon J. Dyer and Theo S. Jewett, both of Laconia, for testator's brother. Robert V. Johnson, of Laconia, as guardian ad litem, for brother's children. Fortunat E. Normandin, of Laconia, as guardian ad litem and agent, for other parties in interest.
The testator clearly intended that the trust estate should be held for his brother's benefit during the latter's life. It is equally clear that the brother was to have no voice in the charge and management of it, nor any right to its use or expenditure in such manner as he might demand. What was proper to be used and expended for his benefit was to be determined within the limits of reasonable discretion (Eaton v. Eaton, 82 N.H. 216, 132 A. 10), not by him, but by another.
The will is silent in any mention of a trustee in place of the one it names. But a trust is to be maintained and enforced by a substitute trustee when there is a vacancy in the trusteeship. Although the will makes no provision therefor, one will be appointed, and with such powers as the due execution of the trust requires.
The case here is not parallel with those of Hall v. Harvey, 77 N.H. 82, 88 A. 97, and Carlton v. Henderson, 79 N.H. 416, 111 A. 75. In the Hall Case the trustee had a power of appointment, being "the sole judge" of the distribution for which the will made provision. The trust in such respect depended for its execution upon the exercise of the personal confidence reposed in the trustee. In the Carlton Case no test or standard was set out for the exercise of the named trustee's discretion in paying principal to the beneficiary, and hence no right of the latter to demand payment ensued. Here the...
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Athorne v. Athorne
...the income were those involving a wife or child who was in need of support. Gardner v. O'Loughlin, 76 N.H. 481, 84 A. 935; Fowler v. Hancock, 89 N.H. 301, 197 A. 715. This result was reached as a matter of construction of the trust instrument on the theory that the needs of a married man al......
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Schwager v. Schwager
...82 N.H. 216, 132 A. 10; Id., 81 N.H. 275, 125 A. 433, 35 A.L.R. 1034, denied wife's alimony; allowed children's support; Fowler v. Hancock, 89 N.H. 301, 197 A. 715, held in discretion of trustee to support beneficiary's children. New York: Fink v. Fink, 139 Misc. 630, 248 N.Y.S. 129, recove......
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Upton v. White
...The power is not of a character leading to a conclusion of personal confidence reposed only in the named trustee. Fowler v. Hancock, 89 N. H. 301, 302, 303, 197 A. 715. The grant of the power included, in analysis, a direction to convert the real estate, so far as it remained in the trust a......
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...legal duties, since that amounts to a "benefit." (See, e.g., Orr v. Moses (1947) 94 N.H. 309, 52 A.2d 128, 129; Fowler v. Hancock (1938) 89 N.H. 301, 197 A. 715.) In our case it cannot be said that the terms of Kiebler's trust are necessarily violated if sums from principal are applied to s......
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...2d 245 (1957), 188 N.Y.S.2d 161 (1958). (10) In re Estate of Howard, 236 S.E.2d 423 (1977). (11) Id. at 425. (12) See Fowler v. Hancock, 197 A. 715 (13) Supra note 2. (14) Nettelton, 4 T.C. at 992, 993. (15) National Security Co v. Jarret, 95 W. Va. 420, 121 S.E. 291 (W.V. 1924); Combs v. C......