Herrick v. Snow

• Decision Date: 21 July 1900
• Citation: 47 A. 540,94 Me. 310
• Parties: HERRICK v. SNOW.
• Court: Maine Supreme Court

47 A. 540

94 Me. 310

HERRICK

v. SNOW.

Supreme Judicial Court of Maine.

July 21, 1900.

(Official.)

Agreed statement from supreme Judicial court, Piscataquis county.

Action by Fannie N. Herrick against Walter H. Snow, trustee. Submitted on agreed statement Judgment for defendant.

Argued before WISWELL, C. J., and EMERY, HASKELL, SAVAGE, and FOGLER, JJ.

G. W. Howe, for plaintiff.

J. B. Peaks and E. C. Smith, for defendant.

FOGLER, J. This is an action of assumpsit, wherein the plaintiff sues the defendant, in his capacity as trustee of the estate of Charles A. Snow, deceased, for the board of Charles H. Snow, minor son of said deceased, from November, 1893, to November, 1895.

The case is submitted upon an agreed statement, and a copy of the last will and testament of said Charles A. Snow. It is admitted for the purposes of the case that said Charles H. Snow is the only child of said Charles A. Snow, deceased, and that the plaintiff furnished the board sued for. It is not claimed that the defendant, either individually or as trustee, requested or authorized such board to be furnished, or expressly promised to pay therefor; but it la contended by the plaintiff that the defendant, as trustee under the will of the father, is obliged to provide for the support of the son, and that a promise to pay therefor is implied by law.

The testator by his will appointed two trustees. One declined the trust, and the defendant was appointed in his stead by the probate court, by virtue of the provisions of Rev. St. c. 68, § 5. The other original trustee having died, the defendant is now the sole surviving trustee.

By the fifth clause of the will the testator bequeathed his personal estate to the trustees named therein, providing, among other things, "the income and balance of said personal property, and so much of the principal as may be necessary, is to be used for the proper care and education of my said son, Charles Henry, and what may be left from the proceeds of said personal property is to be paid by said trustees to my said son when he shall arrive at the age of twenty-one years."

The entire personal property of the estate was used by the administrator for the payment of debts and charges, and no portion thereof ever came to the hands and possession of the defendant or of his co-trustee. The trust having thus failed, the defendant is under no obligation, so far as the personalty is concerned, to provide for the support of the testator's minor son.

The sixth clause of the will is as follows: "Sixth. I give and devise to I. W. Hanscom and Albert Murray my homestead farm on Pleasant river, in Milo, including the wood lot separated from said homestead by land owned by Stephen Snow, to have and to hold to the said I. W. Hanscom and Albert Murray in trust that the said Hanscom and Murray shall oversee the management and improvement of said farm, and yearly, and every year, account and pay...