Woodward v. Jolbert

• Decision Date: 06 May 1947
• Citation: 52 A.2d 641
• Parties: WOODWARD et al. v. JOLBERT et al.
• Court: New Hampshire Supreme Court

52 A.2d 641

WOODWARD et al.

v.JOLBERT et al.

Supreme Court of New Hampshire.

May 6, 1947.

Transferred from Superior Court, Coos County; Goodnow, Judge.

Petition by Howard T. Woodward and another, trustees under the will of Emma Jolbert, for advice concerning the exercise of discretion conferred upon them by the will, to which Victor C. Jolbert and others were made parties. Certain facts were found by the Court who transferred without ruling the question whether the trustees possessed lawful authority to convey to life beneficiaries the corpus of the trust estate.

Petition returned to Superior Court for further proceedings consistent with opinion.

Petition by trustees under the will of Emma Jolbert, late of Berlin, for advice concerning the exercise of discretion conferred upon them by the will. Certain facts were found by the Court (Goodnow, J.), who transferred without ruling the question whether the trustees ‘possess lawful authority’ to convey to life beneficiaries the corpus of the trust estate.

The testatrix, by her will dated January 7, 1937, bequeathed her household effects and jewelry to her daughter, Gaynelle J. Cross, and gave the residue of her estate to the petitioners, in trust for the benefit of her son and daughter during their natural lives, and at the decease of the survivor to be distributed among living grandchildren of the testatrix. Specifically, the will provides that the trustees shall pay the annual net income of the trust to the son and daughter ‘during the whole of their natural life,’ as the trustees may determine, and upon the death of either, the income is to be divided ‘between the survivors (sic) and the children of the deceased beneficiary.’ At the decease of the survivor, the trust is to terminate, and distribution of the assets to be made in equal shares among granchildren then living.

The clause of the will to which the petition primarily relates provides as follows: ‘In the event that adversity, distress or poverty should befall either one or both of my said life beneficiaries, and that the income and revenue of my estate should prove insufficient to prevent suffering and want, I empower my said trustee to draw upon, anticipate upon, and use a part or the whole of the corpus or principal of my said estate to make payments to the said beneficiaries in addition to payment out of the revenue to relieve and eliminate such want and suffering. In this provision my said trustee is to be the one at his sole discretion to determine the existence of such need and want, the manner of drawing upon the principal, and the manner and amount of such payments with the further provision that whenever any money is paid to one under this provision a like payment in like amount is to be due and payable to the other beneficiary, or his children as the case may be.’

The trustees were appointed in 1938. Both life beneficiaries are living; the son has one child, the daughter, four children. The trustees, having determined that the daughter is in want and has been for a long time in adversity, distress, and poverty, and that the income of the trust is insufficient to prevent suffering and want on her part, seek advice as to whether they may lawfully convey to each of the life beneficiaries one of two separate brick dwellings of similar construction and equal value which constitute the assets of the trust.

Arthur J. Bergeron, of Berlin, for the trustees.

DUNCAN, Justice.

The will plainly sets forth the occasion when principal may be invaded for the benefit of the life beneficiaries, and the purposes for which such invasion may be made. If in consequence of adversity, distress, or poverty, one or both of the beneficiaries encounter want and suffering which the income is inadequate to prevent, principal may be used for the purpose of making payments ‘to relieve and eliminate such want and suffering.’ The ‘manner of drawing upon the principal,’ and the ‘manner and amount’ of payment to the recipients for the purpose indicated, are left to the discretion of the trustees upon their determination that there is occasion therefor. The only restriction imposed is that both beneficiaries shall benefit if one does.

According to the allegations of the petition and the facts found, the trustees are satisfied that an occasion for the use of principal for the benefit of the testatrix' daughter is at hand. The purpose for which they seek to use it is plainly authorized by the will. They assert by their petition that they believe it ‘desirable, fitting, proper, and equitable’ that they should convey to the beneficiaries the entire trust estate in kind, and inquire if this is lawful.

At the outset, attention should be drawn to a principle so firmly established as to require little citation of authority. While the exercise of discretion by a trustee is subject to supervision by the court, the discretion vested in the trustee can in no sense be exercised for him by the court. The reasonableness...