Rogers v. Munsey

• Decision Date: 28 October 1960
• Citation: 103 N.H. 37,164 A.2d 554
• Parties: Charles C. ROGERS, G'd'n of Alberta F. Folsom, v. Everett D. MUNSEY, Successor Trustee u/w/o Imogene F. Cooke.
• Court: New Hampshire Supreme Court

Page 554

164 A.2d 554

103 N.H. 37

Charles C. ROGERS, G'd'n of Alberta F. Folsom, v. Everett D. MUNSEY, Successor Trustee u/w/o Imogene F. Cooke.

Supreme Court of New Hampshire.

Argued Sept. 8, 1960.

Decided Oct. 28, 1960.

Harold E. Wescott, Peter V. Millham, Laconia for plaintiff.

Nighswander, Lord & Bownes and William T. Krasnow, Laconia for defendant.

Normandin & Normandin and Thomas P. Cheney, Laconia for defendant, The Laconia Home for the Aged.

Ernest R. D'Amours, Manchester, Director, Register of Charitable Trusts, pro se.

KENISON, Chief Justice.

The plaintiff, guardian of Alberta F. Folsom, filed a petition in the probate court seeking to reopen twenty three accounts filed by the deceased trustee, George P. Munsey, under the will of Imogene F. Cooke from the date of his appointment in 1927 to the date of his death in 1954. The petition seeks a decree by the court ordering the successor trustee, Everett D. Munsey, to reimburse the plaintiff, as guardian of the life beneficiary, from the trust estate 'such sum as is reasonable toward the support' of the life beneficiary during that period from 1927 to 1954. The first question transferred by the probate court is: 'May the petitioner re-open any of the accounts of the late George P. Munsey, as trustee, for the purpose stated in the petition?'

It is argued that the deceased trustee's accounts should be reopened because no guardian ad litem was appointed when they were allowed by the probate court. The decrees allowing the accounts were entered in proceedings in which the beneficiary was represented only by the trustee accountant himself, who was also her legal guardian. The circumstances placed upon him the burden of providing for disinterested representation on her behalf in the accounting proceedings, if the decrees were to be binding upon her as final judgments. Indian Head Nat. Bank v. Theriault, 96 N.H. 23, 28, 69 A.2d 226. Such representation would have been provided by the appointment of a guardian ad litem (RSA 462:1), an appointment which the exercise of reasonable discretion required. Hollis v. Tilton, 90 N.H. 119, 120, 5 A.2d 29, 6 A.2d 753. See Estate of Charters, 46 Cal.2d 227, 235-236, 293 P.2d 778. Fratcher, Powers and Duties of Guardians of Property, 45 Iowa L.Rev. 264, 297, 335 (1960). Because no such appointment was made, the decrees are voidable for good cause shown at the instance of the beneficiary acting through her present guardian. Note, Guardians Ad Litem, 45 Iowa L.Rev. 376, 381 (1960). See also, Bogert, Trusts & Trustees (2d ed. 1960) s. 973, p. 344.

The power of the probate court to reopen a fiduciary's account for good cause is not disputed. Knight v. Hollings, 73 N.H. 495, 63 A. 38; Indian Head Nat. Bank v. Theriault, 96 N.H. 23, 69 A.2d 226; Massachusetts Bonding & Ins. Co. v. Keefe, 100 N.H. 361, 127 A.2d 266. The pending petition however presents to cause for such reopening. The contention is made that the trustee was under a duty to expend the entire income of the trust for the benefit of the testatrix's daughter (Haynes v. Carr, 70 N.H. 463, 49 A. 638) and that he was lacking in authority to accumulate any income. The will however fails to support this contention. The trustee was given the 'right' not only to 'use' and 'expend' the fund, but also to 'hold the same.' Cf. Haynes v. Carr, 70 N.H. 463, 49 A. 638. That the language of the will manifested an intention that the trustee should be free to accumulate income, as well as to retain the principal, in his discretion is confirmed by other provisions of the will, bequeathing to other legatees at the daughter's death 'whatever remains of said estate.' Kimball v. New Hampshire Bible Society, 65 N.H. 139, 152, 23 A. 83-85. See Amoskeag Trust Co. v. Haskell, 96 N.H. 89, 70 A.2d 210, 71 A.2d 408.

We conclude that the life beneficiary was entitled to receive only so much of the income or principal as the trustee in the reasonable exercise of his...