Jacobs v. Bean
| Citation | 108 A.2d 559,99 N.H. 239 |
| Parties | Norman JACOBS et al., Ex'rs. u/w/o/ Albert M. Bean, v. Albert N. BEAN et al. |
| Decision Date | 29 October 1954 |
| Court | Supreme Court of New Hampshire |
Arthur J. Bergeron and J. L. Blais, Berlin, for executors, amici curiae.
Nighswander, Lord & Bownes, Wm. S. Lord, Laconia, for guardian ad litem.
The petitionees appeared pro se.
A will may direct a fiduciary to do the impractical but it cannot require him to do the impossible. Hayward v. Spaulding, 75 N.H. 92, 94, 71 A. 219; N.H. anno. Restatement, Trusts, § 165. 'Sometimes the purpose for which a private express trust was created becomes impossible of accomplishment * * *.' 4 Powell, Real Property, § 567, p. 425 (1954). In that case, depending on the provisions of the will as a whole and the circumstances, a court of equity may terminate the trust or permit the fiduciary to deviate from the terms of the trust. 2 Scott, Trusts, §§ 165, 167.
After the testator sold his stock to his grandchildren, it was obviously impossible for the executors to carry out his purpose of transferring it in exchange for debenture notes. When the corporation refused to purchase the real estate on the terms stated in the will, it was likewise impossible for the executors to comply with the testamentary directions. When the widow waived the provisions of the will and took her statutory share, the testamentary scheme of distributing the assets of the estate was further impaired. While these events defeated a basic direction and provision of the will, it by no means follows that the dominant purpose of the testator must be nullified. 2 Scott, Trusts, § 167, 3 Bogert, Trusts and Trustees, §§ 561, 562. Equity may control the administration of a trust by permitting deviation in order to carry out its dominant purpose 'particularly when changing circumstances would otherwise defeat it.' In re Herzog, 301 N.Y. 127, 138, 93 N.E.2d 336, 341; Wentworth, Deviations from Terms of Will, 92 Trusts and Estates, 720 (1953).
'The court will direct or permit the trustee to deviate from a term of the trust if owing to circumstances not known to the settlor and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purposes of the trust; and in such case, if necessary to carry out the purposes of the trust, the court may direct or permit the trustee to do acts which are not authorized or are forbidden by the terms of the trust.' Restatement, Trusts, § 167(1) and comment. The doctrine of deviation has been frequently applied in this state although not always so denominated. Brown v. Berry, 71 N.H. 241, 52 A. 870; Petition of Wolcott, 95 N.H. 23, 56 A.2d 641, 1 A.L.R.2d 1323; McGill v. Young, 75 N.H. 133, 71 A. 637. While deviation is allowed only for cogent reasons and only to the extent necessary to effectuate the primary purpose of the trust, Citizens Nat'l Bank v. Morgan, 94 N.H. 284, 51 A.2d 841, 170 A.L.R. 1215, the equitable power to permit it is clear. 1 Nossaman, Trust Administration and Taxation, § 553. The judicial authority to permit deviation from the terms of the trust as it relates to trust property and investments where 'a change of circumstances * * * would defeat or substantially impair the accomplishment of the purposes of the trust' is confirmed by the express provisions of R.L. c. 371, § 4. That this statute is more limited than the general equitable power of the Superior Court in trust matters is evident from the last sentence of R.L., c. 371, § 4. It provides that 'This section shall not be construed to limit or restrict the general equitable jurisdiction of the court over trustees, trusts or trust funds.'
While it is true that the testator knew that the stock could not be transferred to the corporation under his will, the refusal of the corporation to acquire the timberlands and the refusal of the widow to accept the will were circumstances not known to the testator and not anticipated by him. In order to carry out the...
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Certain Scholarship Funds, In re
...permits a reworking of administrative details so that the trust purposes may be accomplished effectively. Jacobs v. Bean, 99 N.H. 239, 241-42, 108 A.2d 559, 561 (1954). The doctrine of deviation permits changes in the management of all trusts, and in the case of charitable trusts, may be em......
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Frolich's Estate, In re
...object of disposition intended by the transferor will be given effect if not contrary to statute or public policy. Jacobs v. Bean, 99 N.H. 239, 240, 108 A.2d 559, 560 (1954). The petitioner in this case was directed in effect to deed the Stinson Lake property from herself as executrix and t......
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Lathrop's Estate, In re
...construction is favored which salvages as much of the remainder as is consistent with the general purposes of the will. Jacobs v. Bean, 99 N.H. 239, 108 A.2d 559. This constructional preference for the maximum validity of the testator's dispositive plan applies to all wills. No distinction ......
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Concord Nat. Bank v. Hill
...As detailed a residuary clause as there is in this will and codicil indicates that no intestacy was intended. Jacobs v. Bean, 99 N.H. 239, 242, 108 A.2d 559, 562 (1954); White v. Corinthian Lodge, 100 N.H. 138, 121 A.2d 795 (1956). We give due weight to the constructional preference against......
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Protecting "donor intent" in charitable foundations: wayward trusteeship and the Barnes Foundation.
...is allowed only for cogent reasons and only to the extent necessary to effectuate the primary purpose of the trust ...." Jacobs v. Bean, 108 A.2d 559, 561 (N.H. 1954). Logic tells us that the deviations undertaken by the Barnes trustees could only be deemed "necessary" if all alternatives p......