Wolfman v. Webster , 77 N.H. 24 ( 1913 )

It is very apparent from the language of the will and codicil that the testator intended to vest in the trustee a discretion as to the amounts of the several monthly payments to his son and the times when they should be made, guided by what he should deem "most beneficial" to the son, but under no circumstances was he to pay any debts of the latter contracted prior to the death of the testator. Upon the assumption that the trustee was authorized to pay debts contracted by the son after the testator's death from the income, it is not probable that he was to pay them without regard to the needs and comfort of the son. It is not probable that the testator, who was attempting to protect his son from his own improvidence, intended to practically defeat that purpose by ordering the trustee to pay unconditionally all such debts as they became due, if he had sufficient income in his hands for that purpose. Upon such a construction of the will, both the income and the principal might be dissipated by the son's contracting unnecessary and improvident debts. This result is so inconsistent with the manifest general purpose of the testator, that the will cannot be so construed if his intention is to prevail. As there is no evidence that, the trustee unreasonably refused to pay the plaintiff's claim or is in any respect guilty of an abuse of the trust with reference to it (Gardner v. O'Loughlin, 76 N.H. 481), his refusal to recognize the debt was justifiable as an exercise of his discretionary power, and the ruling of the superior court discharging the trustee was therefore correct. Brock v. Sawyer,39 N.H. 547; Banfield v. Wiggin, 58 N.H. 155; Chase v. Currier, 63 N.H. 90.

Exception overruled.

All concurred.