Abbott v. Abbott , 76 N.H. 225 ( 1911 )

Considering all the language employed by the testatrix to declare her purpose, it is plain she did not intend to devise the half of the dwelling-house claimed by the plaintiff under the execution sale to her executor merely for the use of her daughter. If this conclusion might be drawn from the first part of the devise, where the property is given to the executor in trust for the benefit of the daughter, it cannot be when the language used to define the duties and powers of the trustee is considered. The trustee is to administer the income and must have possession and control of the property to collect the rents and make repairs, and has power to sell and convey. The testatrix intended a trust in the executor, and not a devise to the use of the daughter, which, executed by the statute, would give her the legal title. The words used were legally sufficient to declare such purpose. Tappan's Appeal, 55 N.H. 317, 320, 321; Hutchins v. Heywood, 50 N.H. 491; Hayes v. Tabor, 41 N.H. 521; Upham v. Varney, 15 N.H. 462; 1 Per. Tr., s. 305. She created a trust coupled with a power to administer the estate, expend the surplus income with discretion in paying for comforts and necessaries for the daughter's personal use, and to sell the property upon the contingency that in the trustee's judgment such a sale should be for the best interests of the daughter, with a gift over at the death of the daughter in case no sale had been made.

The question of the validity of provisions restraining the alienation of, or attempting to exempt an absolute legal or equitable life estate from the claims of creditors, if it could be raised in this proceeding, does not arise because no absolute estate, legal or equitable, is given the. daughter. "A trust may be so created that no interest vests in the cestui que trust; consequently, such interest cannot be alienated, as where property is given to trustees to be applied in their discretion to the use of a third person, no interest goes to the third person until the trustees have exercised this discretion." 1 Per. Tr., s. 386 a; Barnes v. Dow,59 Vt. 530, 542. No title to the land, legal or equitable, was vested in the daughter at the time of the plaintiff's purchase at the execution sale, and he has obtained none.

Whether the refusal of the trustee to pay the plaintiff's claim, which may be inferred from the case, is an abuse of the discretion vested in him to expend the income or sell the premises, which he has made no attempt to exercise, is a question not found or presented. Such discretion is not arbitrary, but is subject to revision by the court. Ellis v. Aldrich,70 N.H. 219, 222. Whether such discretion is properly exercised is a question of fact. Cram v. Cram, 63 N.H. 35, 36. But the court will not interfere until there is evidence of abuse. Brock v. Sawyer, 39 N.H. 547,553; Edgerly v. Barker, 67 N.H. 443, 448. In accordance with the provisions of the case, the order is,

Petition dismissed.

All concurred.