Petition Of Rochester Trust Co., 3617.
| Decision Date | 03 December 1946 |
| Docket Number | No. 3617.,3617. |
| Citation | 49 A.2d 922 |
| Parties | Petition of ROCHESTER TRUST CO. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Strafford County; Wheeler, Judge.
Petition of Rochester Trust Company for instructions concerning the proper disposition of a fund bequeathed to certain trustees by the residuary clause of the will of Susan O. Dennett. Question transferred without a ruling.
Case discharged.
Petition for instructions concerning the proper disposition of a fund bequeathed to certain trustees by the residuary clause of the will of Susan O. Dennett, ‘said fund to be given to some strictly Protestant Charitable institution which may be organized in the City of Rochester New Hampshire.’ The named trustees having died, the plaintiff was appointed to succeed them.
No strictly Protestant charitable institution existed in Rochester on March 23, 1913, when the will was executed, and none has been organized in that city since that date.
The question of the intention of the testatrix as to the disposition of the fund in the hands of the plaintiff was transferred by Wheeler, J., without a ruling.
Frank W. Peyser, of Rochester, for plaintiff.
Ernest R. D'Amours, Atty. Gen., and Gordon M. Tiffany, Law Asst., of Concord, (G. M. Tiffany, of Concord, orally), for the State.
The State's counsel suggest that since literal compliance with the terms of the trust is impracticable, there being no Protestant charitable institution in Rochester, and since the will contains no provision for forfeiture in that event (see Keene v. Eastman, 75 N.H. 191, 193, 72 A. 213) the court should invoke its cy pres powers to effect as nearly as may be the general intention of the testatrix (see Restatement, Trusts; N. H. Annot., § 399), and that this intention can be effectuated by instructing the trustees to bestow the fund in question upon some strictly Protestant charitable institution organized in some other locality.
It is the rule in this jurisdiction that where the testator's particular purpose is not an essential part of his charitable scheme, the court will approve a scheme for the application of the property to some other purpose falling within the testator's general charitable intention. Adams v. Page, 76 N.H. 96, 79 A. 837; 3 Scott, Trusts, p. 2105.
As we interpret the residuary clause, the ‘exact location’ of the Protestant institution to which the fund is to be given ‘is not a paramount consideration.’ State v. Federal Square Corporation, 89 N.H. 538, 544, 3 A.2d 109, 114.
There is nothing in the will to indicate that the testatrix expected the trustees to organize a Protestant...
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