Campbell v. Clough , 71 N.H. 181 ( 1901 )

1. The petitioner has not authority to make conveyance to the town of Enfield of the unsold lots in Montcalm cemetery belonging to the testator, nor does the "sum of five hundred dollars become a portion of the testator's general estate." The declination of the town to accept the trust did not defeat it. The effect was merely to leave its execution to another trustee. It is a rule without exception that equity never allows a legal and valid trust to fail for want of a trustee.

2. Although the petitioner is not in terms appointed trustee, the will clearly contemplates a trust in him beyond the ordinary duties of an executor, and clothes him with the dual fiduciary capacity of executor and trustee. Wheeler v. Perry, 18 N.H. 307, 309, 311; Sawyer's Appeal,16 N.H. 459; 1 Per. Tr. (3d ed.), s. 262. As such, he is not only required to perform the duties incumbent on him as executor in the ordinary course of administration of the testator's estate, but upon the settlement of his account with the probate court, at the expiration of the statutory term, he is required to transfer to himself as trustee the amount then remaining in his hands as executor, and to give bond for the faithful performance of his duties as such trustee (P. S., c. 198, s. 1), unless he shall be permitted by the court to resign the trust, or neglects and refuses to give bond for its performance. Ib., ss. 4, 5.

3. Relative to the third question, we are of opinion that the language used by the testator in respect of his aunts and children affords satisfactory proof that his purpose was to make the gifts to the town in trust for the purposes specified dependent upon both a certainty and a contingency. The ascertainment of the certainty which he apparently had in mind is quite free from difficulty, but what the contingency was cannot be satisfactorily determined, and the result arrived at must be at best but a probable one; but giving construction to the will as a whole and to every part thereof, as well as to the relations of the testator to the persons who were manifestly the first objects of his bounty, we think it is more probable than otherwise, upon the competent evidence presented for our consideration, that it was his intention to make the gifts in question dependent upon the decease of all the aunts, which is a certainty, and upon the event of the decease of all the children without becoming entitled to the possession of their respective shares of the estate, which is a contingency. The will is construed and the petitioner advised accordingly.

4. The children are not necessarily to receive their portions of the estate upon their arrival at the age of twenty-one years, or at any other definite age, and in this regard we think they all stand on the same footing. When they arrive at a suitable age, if possessed of the requisite capacity and of good business qualities, they then become entitled to the possession of their respective portions. In the continued absence of these qualifications until they attain the age of thirty years, they then become so entitled, if they are of good habits; otherwise their portions are to be held in trust until their habits become good. Whether at any given age the prescribed requisites are or are not wanting, must be determined by the petitioner or his successors, in the exercise of a sound discretion and subject to the supervision of the court.

Case discharged.

All concurred.