Upton v. White

• Decision Date: 03 November 1942
• Citation: 29 A.2d 126
• Parties: UPTON v. WHITE et al.
• Court: New Hampshire Supreme Court

29 A.2d 126

UPTON

v. WHITE et al.

Supreme Court of New Hampshire. Merrimack.

Nov. 3, 1942.

[Copyrighted material omitted.]

Transferred from Superior Court, Merrimack County; Connor, Judge.

Petition by Robert W. Upton, trustee, against D. Waldo White and others for instructions. Transferred without ruling to the Supreme Court.

Case discharged.

Petition, for instructions by a testamentary trustee. The testator left his residuary estate in trust, giving his son George, his only heir-at-law, certain life interests therein, and providing for the distribution of the estate upon his son's death. Upon that event, with George leaving no widow or issue, as is the case, the will provides that the trustee "shall pay over" the estate then in his hands "in equal portions to William H. Page and George M. Tallant, both of said Concord, Martha A. Dowst wife of Frank A. Dowst of Manchester, N. H., and Frank E. Tallant, if said parties are solvent at the time of my decease".

Martha predeceased the testator and left no issue. William, George Tallant and Frank were each solvent at the testator's decease. William and George Tallant died during the life beneficiary's survivorship of the testator. William by will left his estate to his wife. Thereafter and while the life beneficiary was living she conveyed to the defendant White her interest in the cestator's real estate, the deed of conveyance describing it and the description being of the real estate held in the trust. George Tallant died intestate in Minnesota, leaving a widow and daughter, both now living. Frank Tallant is also now living.

The trust estate is real property in Concord, consisting of buildings varying in value and upon a single area of land.

The trustee is a successor of the trustee named in the will, and by the will the named trustee was empowered to sell the real estate or any part of it without judicial license.

Instructions are sought upon the following inquiries:

1. Has the trustee the authority and duty to convert the real estate into cash for final distribution?

2. Who are entitled to share in the distribution and what is the nature and extent of their respective interests?

3. How shall the distribution of the trust estate be made?

The inquiries have been transferred without ruling by Connor, J.

Laurence I. Duncan, of Concord, by brief and orally, for Robert W. Upton, amicus curiae.

Peter J. King, of Concord, for certain defendants, and D. Waldo White, pro se, filed no briefs.

ALLEN, Chief Justice.

I. The will is construed to provide for the conversion of the trust property into cash upon the life beneficiary's death. The requirement for the trustee to "pay over any property" then held in the trust imports such conversion of the property by him before its distribution. This construction is strengthened by the unitary character of the property the testator left preventing its economic division in proportionate parts among the remaindermen. To give "equal portions" of the property at the son's death among four persons with the unitary character of the property unchanged contemplates conversion, and a tenancy in common among them is not, within the contemplation of the will, a distribution in the form of payment.

The power of the named trustee to sell without judicial license extends to the successor trustee, although not expressed in terms to such effect. The power is not of a character leading to a conclusion of personal confidence reposed only in the named trustee. Fowler v. Hancock, 89 N. H. 301, 302, 303, 197 A. 715. The grant of the power included, in analysis, a direction to convert the real estate, so far as it remained in the trust at the son's decease into money, and a limitation of the direction to the named trustee is not sensible.

Since the will validly vested in the trustee the power to sell, no occasion for obtaining license from the Probate Court exists. The duty to sell as a prerequisite to distribution being established, it would be an extraordinary anomaly to be under the further duty to obtain permission" to perform it, with a resulting confusion if the license were not granted. In Harris v. Ingalls, 74 N.H. 339, 68 A. 34, the seeming advisability of procuring such a license was declared, in view of the statute (P.S. c. 194, § 15, P.L. c. 305, § 17, R.L. c. 358, § 17) authorizing the Probate Court to license an executor to sell real estate when the will shows the testator's intention that the executor should sell. Without now considering the need of an executor to obtain license to sell real estate which the will directs or authorizes him to sell, the statute is deemed inapplicable to trustees. Their need of license is provided for by another statute (R.L. c. 363, § 13), and a trustee's discretionary power or directed command to sell by the will is not thought to require license for its exercise or performance.

The statute law is not designed to bar a testator's right to provide measures for the guidance and authority of his trustee. Clearly his right to make a will includes the right to give the trustee certain privileges and exemptions as a waiver or release of statutory duties of administration otherwise imposed. The testator, having his right of choice of a trustee with limited exceptions, may provide for the details of his control and management of the trust, if consistent with statutory or other policy of the law. Provisions by will for a trustee to be appointed on furnishing a nominal bond or a bond without sureties, to invest the trust property in real estate or as his discretion may determine, not to be liable except for conduct of bad faith, to take compensation for services as the will may fix, and to engage investment counsel, may be cited among other matters which are generally understood to meet the requirement of his bond that he will "faithfully execute the trust according to the true intent of the devisor". R.L. c. 363, §§ 1, IV. The testator's right to place burdens on a trustee not imposed by statute and to relieve him from burdens not required to maintain judicial authority over the trust is only an incident of his right to dispose of his property by will in such manner as he sees fit and not by law forbidden. While judicial authority for supervision of the trust may not be abridged, the authority is to be exerted in compliance with the terms of the will regulating management in respect to matters for which the statutes provide if the terms omit to do so. The principle that the terms of a will govern in the absence of a conflicting policy of the law as ordained by legislation or as declared by the courts is an elementary one. A testator's right to choose and name a trustee not reasonably fit to hold the office implies the additional right to free him from the reins of procedure otherwise directed.

II. The...