Watson v. Kennard

• Decision Date: 04 March 1913
• Parties: WATSON v. KENNARD et al.
• Court: New Hampshire Supreme Court

86 A. 257

77 N.H. 23

WATSON

v. KENNARD et al.

Supreme Court of New Hampshire. Hillsborough.

March 4, 1913.

Exceptions from Superior Court, Hillsborough County; Mitchell, Judge.

Attachment by George M. Watson against Samuel C. Kennard and Harry L. Additon, trustee. There was a finding for plaintiff, and defendant trustee excepts. Exceptions overruled.

The trustee in this action is a trustee under the will of Angeline F. Kennard, and the defendant is her surviving son. By the will, the residue of her estate is given to the trustee to invest and manage, and to "pay the net annual income thereof quarterly to my said son, Samuel C. Kennard, for and during the term of his natural life; and in ease it shall become necessary for the comfortable maintenance and support of said Samuel C. Kennard, to expend so much of the principal as may be necessary or proper to furnish to said Samuel C. Kennard and his family such suitable and comfortable maintenance and support." The court (Mitchell, J.) found the trustee chargeable for income received from the trust fund, amounting to $255.54, and the trustee excepted. Transferred from the May term, 1912, of the superior court.

William W. Forbes, of Manchester, for plaintiff.

Wallace B. Clement, of Manchester, for trustee.

WALKER, J. The only objection relied upon by the trustee to the order of the superior court is that, as the trustee under the will, he was vested with a discretion as to the payment of the net income to the beneficiary, and that it was therefore error for the court to hold him chargeable in this action. The case of Banfield v. Wiggin, 58 N. H. 155, cited by the trustee, would sustain his contention, if it were true that the will made the payment of the income to the principal defendant to depend upon the discretion of the trustee. But the language of the will shows, beyond any serious doubt, that the testatrix's intention was that her son should be entitled, without condition or limitation, to the net annual income of the fund in the hands of the trustee, payable quarterly. Whether quarterly payments should be made from the accrued income was not left to the determination of the trustee. The testatrix decided that question, and her decision is final. The fact that the trustee was authorized by the will to expend a portion of the principal for the benefit of the son, in case it should become necessary for his comfortable maintenance and support, has no tendency to show that he has a discretion as...