Wentworth v. Waldron

• Citation: 172 A. 247
• Parties: WENTWORTH v. WALDRON.
• Decision Date: 03 April 1934
• Court: Supreme Court of New Hampshire

172 A. 247

WENTWORTH

v. WALDRON.

Supreme Court of New Hampshire. Strafford.

April 3, 1934.

Transferred from Superior Court, Strafford County; Sawyer, Judge.

Bill by Fred K. Wentworth, executor, against Jeremy R. Waldron, guardian. The case was referred to a master who recommended that the bill be dismissed, and plaintiff excepted. Transferred without a ruling.

Bill dismissed.

Bill in equity in which the plaintiff prays (1) that the waiver of the will of plaintiff's testator, John N. Haines, filed by the defendant as guardian of the testator's widow, Matilda P. Haines, be declared null and void; and (2) that the defendant be enjoined from prosecuting against the plaintiff any demand for such portion of the estate of the testator as the widow would be entitled to receive under the statute (Pub. Laws, c. 306, §§ 10, 11) after waiving the provisions of the will.

The case was referred to a master, who heard no evidence in support of the allegations of the plaintiff's bill, but made certain rulings of law, hereinafter stated, and in accordance therewith recommended that the bill be dismissed. To this action on the part of the master the plaintiff excepted. The questions of law thus presented were transferred without ruling by Sawyer, C. J.

The essential allegations of plaintiff's bill are as follows:

John N. Haines died May 27, 1931, leaving a widow, Matilda P. Haines, then 76 years of age. By his will, dated October 7, 1927, he devised and bequeathed his entire estate in trust, stipulating that the income be paid to his wife during her life, and that, if she should desire or require more than said income for her comfortable maintenance and support, then the trustees should pay. to her, or use and expend for her benefit, so much of the principal of the estate as in their judgment she might require. The plaintiff, Wentworth, is executor and trustee under this clause of the will. Upon June 11, 1931, the defendant, Waldron, was appointed guardian of the widow, Matilda P. Haines, who was found to be insane. The inventory of her estate showed real estate valued at $15,500 and personal estate valued at $37,324.12. June 17, 1931, the defendant filed, on behalf of the widow, a waiver of the will of John N. Haines and a release of dower and homestead. The inventory of the estate of John N. Haines showed real estate valued at $3,100 and personal estate valued at $143,763.45.

Plaintiff avers that the personal needs of the said Matilda P. Haines do not require the filing and allowance of the waiver and that said waiver is not to her advantage; that its effect will be to divert the property and estate of the said John N. Haines from the channels in which said testator intended it to go, and to increase the estate of the said Matilda P. Haines for the benefit of her heirs and beneficiaries, thus perpetrating "a fraud upon the estate of the testator."

In his answer the defendant denies the allegations that the waiver is not for the benefit of his ward and that its effect will be to perpetrate a fraud upon the husband's estate. He asserts that under the provisions of Pub. Laws, c. 291, § 3, he had "the same right to file a waiver of the will and release of dower and homestead a would Matilda P. Haines, if sane, without regard to the effect such waiver might have upon the estate of the said John N. Haines." He further asserts that the court "is without authority to declare null and void and of no effect the waiver of the provisions of the will of said John N. Haines or the release of her right of dower and homestead filed by the said Jeremy R. Waldron as guardian of the said Matilda P. Haines or to enjoin said Jeremy R. Waldron as guardian of said Matilda P. Haines from prosecuting any demand upon said Fred K. Wentworth. * * *"

The master ruled, as matter of law, that the guardian has the same right to waive the provisions of the will and to file a waiver of dower and homestead that the ward would have if sane, and that right in no wise depends upon the needs of the ward for her support, comfort, or maintenance, nor upon its effect in diverting the estate of the testator or defeating his expressed intention to benefit other legatees or devisees.

The master further ruled that such waiver would entitle the guardian to acquire and to hold such estate for his ward, as the ward, if sane, could claim or acquire as surviving widow.

Hughes & Burns and Dwight Hall, all of Dover (S. M. Burns, of Dover, orally), for plaintiff.

Sewall & Waldron and Oscar Neukom, all of Portsmouth (A. E. Sewall, of Portsmouth, orally), for defendant.

BRANCH, Justice.

The master ruled, in substance, that the allegations of the plaintiff's bill did not state a case for equitable relief. In considering the propriety of this ruling, it is logically necessary to give attention first to the assertion made by the defendant in his answer that the superior court is "without authority" to nullify his waiver of the provisions of the will of John N. Haines or to issue the injunction prayed for. This position is untenable. A guardian is a fiduciary whose conduct is subject to regulation by a court of equity in cases where the remedy at law is inadequate. Sparhawk v. Allen, 21 N. H. 9; Dolbeare v. Bowser, 254 Mass. 57, 149 N. E. 626; 12 R. O. L tit. "Guardian and Ward," § 60. The original equitable jurisdiction of the superior court over trusts (Pub. Laws, c. 317, § 1) "extends to any fiduciary or trust relation where the remedy at law is not completely adequate." 21 C. J. tit. "Equity," § 93, and cases cited.

It cannot be said that the remedies available against guardians in the probate courts are completely adequate. The jurisdiction of such courts is limited (Pub. Laws, c. 293), and they have not been clothed with general equitable powers, even with reference to those fiduciaries who are appointed by them. Matters affecting the conduct of fiduciaries which have not been definitely placed by statute within the exclusive jurisdiction of probate courts are still cognizable in equity. See Rockwell v. Dow, 85 N. H. 58, 154 A. 229, 233, where the cases are reviewed. "The general line separating probate jurisdiction from that of the superior courts is not difficult of ascertainment. The distinction is that between things which are 'incident to the business of conducting the administration' and 'a settlement with the judge of probate' concerning administration already had. Patten v. Patten, 79 N. H. 388, 392, 393, 109 A. 415." Rockwell v. Dow, supra, page 66 of 85 N. H., 154 A. 229, 233.

There is still "undoubted jurisdiction in equity to advise the fiduciary as to all doubtful questions touching his duty to act" (Rockwell v. Dow, supra, page 68 of 85 N. H., 154 A. 229, 234), and the power to advise presupposes the power to direct and enjoin. Interested parties may maintain a bill to compel a fiduciary to perform his trust. The existence of this principle was apparently assumed by the court to be unquestioned in Greeley v. City of Nashua, 62 N. H. 166, 167, where we read: "Trustees are not required to incur risk in the management or distribution of the trust fund. In cases of doubt they may apply for the direction of the court, or they may decline to act without its sanction, leaving the parties interested to bring their bill to compel a performance of the trust." To the same effect is Dimmock v. Bixby, 20 Pick. (Mass.) 368, 375. In Patten v. Patten, 79 N. H. 388, 109 A. 415, such a bill was brought and maintained. We therefore conclude that the superior court has power to act in the premises.

The extent to which a court of equity may properly intervene to direct or regulate the action of a trustee or other fiduciary depends, however, upon the terms of the authority under which he acts. It is well-settled law that, "Where discretion is conferred upon the trustee with respect of the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion."...