Smith v. Greeley

• Decision Date: 17 March 1893
• Parties: SMITH v. GREELEY et al.
• Court: New Hampshire Supreme Court

30 A. 413

67 N.H. 377

SMITH

v. GREELEY et al.

Supreme Court of New Hampshire. Hillsborough.

March 17, 1893.

Case reserved from Hillsborough county.

Action by David O. Smith against Ida B. Greeley and others, asking for the construction of a certain will of which plaintiff is executor. Case discharged.

The plaintiff is executor of the will of Samuel Greeley, late of Hudson, in said county. The testator's will was proved April 22, 1879. The plaintiff asks for construction of a certain part of the will. The terms of the will referred to are these: "I give, bequeath, and devise to David O. Smith, of Hudson, afore said, trustee, in trust, the tract of land, with the buildings thereon, situated in said Hudson, known as the Tenney Farm.' * * * Also one undivided half of my land in said Hudson, lying between the 'Burns Road,' so called, and the Hills meadow, containing in all 40 acres, more or less." Following the description of the land is this provision: "Said trustee to hold the same for the following purposes, with full force to convert the same into money, if he thinks best, to pay the income thereof, and, if necessary for his support, such portion of the principal as he may think best, for the support and maintenance of my son, James C. Greeley, or his family. And whenever, in the discretion of said trustee, he may think it advisable, with full— to convey the same to said James C. Greeley, his heirs and assigns." James C. Greeley was alive and unmarried when the will was proved. He had a son, one of these defendants, Lewis J. Greeley, by a former marriage, who was then, and now is, a minor. After the allowance of the will, James C. Greeley married Ida B., one of the defendants, and they had four children, now alive. Said James C. Greeley died in March, 1892, intestate. On the 11th day of January, 1882, this executor sold and conveyed a part of the land held in trust, and acquired in place of it, on the 13th day of December, 1881, another piece of land in Hudson, and the deed was taken in his name as trustee, and the title so remains, as also the title acquired under the will to that which was not disposed of. James C. Greeley, or his family, enjoyed the income of the premises for his support and maintenance and that of his family as long as he lived. The child of the first wife has lived in Lowell, and has not constituted a part of his family for several years. The executor not only allowed Mr. Greeley to have this income, or his family, but he paid out considerable money besides; the same being necessary for his support The executor did not deem it best at that time to dispose of the premises to reimburse himself. One Chase, of Hudson, during Greeley's life, after the creation of this trust, loaned Greeley certain money for his support and that of his family, the same being necessary. The executor desires, if he has the right, to pay said Chase said money so loaned, and he desires to reimburse himself for the amount he advanced for said Greeley's support, and he thinks it advisable to sell a portion or the whole of said premises in order to do this. He brings this proceeding to ascertain what his power and authority is under the will, and because he is uncertain to whom he shall pay the proceeds arising from any sale of the premises that he may make, or whether he shall continue to hold the same in trust if he thinks it advisable. He is uncertain whether by the "family" of said Greeley, as mentioned in the will, is meant his family as it existed at the time of the proof of the will, or his family as it existed after the second marriage; and he is uncertain, should he deem it advisable to convey...