In re Burnham

• Decision Date: 07 April 1908
• Citation: 74 N.H. 492,69 A. 720
• Parties: In re BURNHAM et al.
• Court: New Hampshire Supreme Court

69 A. 720

74 N.H. 492

In re BURNHAM et al.

Supreme Court of New Hampshire. Hillsborough.

April 7, 1908.

Exceptions from Superior Court, Hillsborough County; Peaslee, Judge.

Petition by one Burnham and others, trustees under the will of Emeline R. Balch, deceased, for advice as to the validity of the residuary clause of the will bequeathing the residue of testatrix's estate for the erection and maintenance of a hospital, and for advice as to whether the trust fund should be used to maintain a hospital for general or special use, and, if so, for what use. The trustees, testatrix's heirs at law, the Attorney General, and persons interested in a hospital for a special use appeared and were heard at a trial before the superior court; the heirs claiming that the residuary clause was inoperative, impracticable, null, and void, and praying for a decree that the estate be turned over to them. From a decree directing the erection and maintenance of a hospital for general purposes, the heirs bring exceptions. Overruled.

The residuary clause reads as follows: "I give, bequeath, and devise all the rest, residue and remainder of my estate, real, personal, and mixed, wherever found and however described, for the establishment and maintenance of a hospital to be located at said Manchester and to be known as the Balch Hospital. It is my will that said trust for a hospital be administered by five trustees, to be appointed by the judge of probate for said county of Hillsborough, upon the petition of my executors or administrators. As soon as said trustees shall have been duly appointed and have accepted said trust, my executors or administrators are hereby authorized to convey, transfer, and pay over to said trustees all said rest, residue, and remainder, and are directed to do so as soon as practicable after the remainder is ascertained. Said trustees may adopt rules and regulations for the management of the trust and constitute officers, committees, and agents in furtherance of the charitable objects of this institution, and three of said trustees shall be a quorum for the transaction of business. The original number of five trustees shall be preserved, and in the event of a vacancy one or more of the remaining trustees shall apply immediately to the judge of probate for said county of Hillsborough by petition to fill said vacancy. During the vacancy I give to the remaining trustees all the powers herein given to the five trustees, and to every substituted or succeeding trustee all the powers herein given to the original trustee. The words 'trustees' and 'my trustees' shall be understood to mean the trustees for the time being, original, succeeding, or substituted. It is my will...