Sawyer v. Banfield , 55 N.H. 149 ( 1875 )

I am of the same opinion. An examination of the will of John L. Hanson shows, as I think, that the only person interested in the trust fund is his widow, Eliza W. Hanson. She had notice of the appointment of Banfield as trustee, in place of Wiggin, deceased, and does not now object. This answers the requirement of the statute, and the administrator should pay over the fund to the trustee.

SMITH, J. The devise to Wiggin was in trust for the benefit of Mrs. Eliza W. Hanson, to keep, use, and dispose of according to the best of his, discretion. It is not a devise of the income or of some definite part for her benefit with remainder over to some third person; but the trustee can dispose of the whole principal sum, if that be necessary, for her benefit, during her life. Whatever sum may be left at her decease goes to her heirs, and not to the residuary legatees named in the will.

None of the defendants, except Mrs. Hanson, have, therefore, any pecuniary interest in the fund in the trustee's hands, and were not entitled to notice of the appointment of Banfield as trustee in the place of Wiggin, deceased. By Gen. Stats., ch. 186, sec. 5, it is provided that, upon the death of a trustee appointed by will, a trustee may be appointed by the probate judge in his stead, after notice to the persons interested in the trust-estate. Banfield having been appointed without notice, and the cestui que trust, Mrs. Hanson, not objecting that notice was not given, and the other defendants having no interest in the fund and therefore not entitled to notice, she must be regarded as having waived notice, and the appointment of Banfield must be regarded as valid. Want of notice to the party renders the proceedings voidable by parties injured, not void as to everybody. Kimball v. Fisk, 39 N.H. 110. He must, of course, give bond with sureties to the satisfaction of the court, and must settle yearly accounts, and is liable for mal-administration of the trust fund, and to be removed upon proper cause shown.

Upon the facts as they now appear, he is entitled to receive from the administrator of his predecessor, Wiggin, the balance of the fund in his hands, and to hold the same for the purposes of said trust.

Decree accordingly.