Petition Of Wolcott

• Decision Date: 06 January 1948
• Parties: Petition of WOLCOTT et al.
• Court: New Hampshire Supreme Court

56 A.2d 641

Petition of WOLCOTT et al.

Supreme Court of New Hampshire.

Jan. 6, 1948.

Transferred from Superior Court, Carroll County; Grimes, Judge.

Proceeding for instructions by Oliver Wolcott and another, trustees under the will of Francis E. Getty, deceased. Certain facts were found by the court who transferred without ruling the question of law presented by the petition.

Case discharged.

Petition for instructions brought by trustees under the will of Francis E. Getty, late of North Conway, seeking authority to make payments out of principal to the life beneficiary of a trust established under the will. Certain facts were found by the Court (Grimes, J.), who transferred without ruling the question of law presented by the petition.

The testator died on September 23, 1944. By his will made in 1932, he bequeathed to his widow, Ada C. Getty, the sum of $2,500, and all of his personal and household goods, supplies and furniture, of every kind and nature. To each of his two sons, he bequeathed the sum of $5,000. The residue of his estate, he devised and bequeathed to the trustees ‘to pay over the net income thereof to my wife so long as she lives,’ and upon her death to pay the principal and any accumulated income ‘to my then living issue in equal shares by right of representation, and, in default of such issue, to the persons to whom and in the proportions in which the same would be distributable if I had the died intestate and owning such property absolutely.’ In the event of the wife's decease prior to the testator's, the residue was disposed of by provisions identical with those disposing of the remainder after the life estate.

The will conferred upon the trustees broad powers with respect to investments and management of the trust, including the right to determine what receipts should be ‘credited to income and what to principal, notwithstanding any determination by the courts,’ and the power ‘generally to do all things in relation to the trust fund which the testator could have done if living.’

According to the allegations of the petition, the annual income from the trust fund is now slightly in excess of $2,300, and the principal approximates $107,000. The Court has found that the widow is eighty-two years of age, and that she ‘is ill and infirm and the income of the trust is insufficient to afford her adequate subsistence.’ It is alleged that her ‘reasonable and necessary expenses' including those of constant attendance of a nurse and frequent visits of her physician, exceed $5,800. The trustees accordingly ask that they may be authorized and instructed to invade the principal of the fund for the purpose of providing her with reasonable support, the invasion not to exceed $4,000 a year.

In this petition the trustees are joined by the testator's sons, both of whom survived him, and by the eighteen year old son of one of them. The latter is represented by a guardian ad litem, also appointed to represent the possible interests of persons as yet unborn. Because of provisions against alienation by anticipation, the sons may not utilize their interests to benefit their mother; but by joining with the trustees in their petition, they seek to bring to realization their expressed belief that ‘it could not have been their father's intention that their mother should be deprived of proper support in order that remote future interests might be protected.’

Morse & Grant, of Concord (Thomas L. Marble, of Concord, of counsel), for the petitioners.

John J. Broderick, of Manchester, guardian ad litem, filed no brief.

DUNCAN, Justice.

Although not expressly stated, the testator's purpose that during her life, his wife should have the beneficial use of his entire estate, except for $10,000 bequeathed to his sons, is readily apparent. Apart from these legatees, the only others who might share in the estate are designated not by name, but as members of a class, or as heirs or next of kin, and would take only in the event that the widow survived one or both of the sons. The residue, at the widow's death, is to be distributed among the testator's ‘then living issue in equal shares by right of representations,’ a phrase plainly descriptive of the testator's lineal descendants. Kimball v. Penhallow, 60 N.H. 448. See R.L., c. 7, 20. The widow's death before that of her sons would result in a division between them.

The only other living issue, whose interest is purely contingent, is the grandson petitioner.

Despite broad discretionary powers conferred upon the trustees, the will contains no provision for the use of principal for the benefit of the widow. On the other hand, such use is not specifically forbidden. It may fairly be assumed that the beneficiary's need of the principal was not anticipated because of a failure to foresee changes which have occurred since the testator's death, including shrinkage in investment returns, decline in purchasing power, and the expense occasioned by the widow's extreme infirmity. The powers conferred upon the trustees as to investments and the allocation of receipts to income are indicative of a purpose to provide the widow with a liberal income, unrestricted by technical rules. No purpose to transmit any specific residuary amount to the sons or to any other issue is disclosed. Fairly construed, the will evidences as its primary purpose ‘ample and certain provision’ for the testator's wife. Cf. Smith v. Fellows, 131 Mass. 20, 22; Trust Co. v. Glunz, 119 N.J.Eq. 73, 77, 181 A. 27.

What is sought by the petition is not construction of any particular provision of the will but rather authority to deviate from the provisions by which principal would be retained intact during the widow's lifetime. No reliance is placed by the trustees upon their general power ‘to do all things in relation to the trust which the testator could have done if living.’ The power is at best obscure in meaning, and if construed independently of other provisions, would have doubtful validity. Clark v. Campbell, 82 N.H. 281, 133 A. 166, 45 A.L.R. 1433. Because of the emergency confronting the life beneficiary, the trustees seek authority to do what the testator presumably would have authorized had he foreseen the emergency.

Where a remainder succeeding a life estate may ultimately vest in persons as yet undetermined and perhaps unborn, courts of equity have at times hesitated or refused to sanction an invasion of principal for the benefit of the life tenant. See Annotations, 39 A.L.R. 40;...