Hackett v. Hackett , 67 N.H. 424 ( 1893 )

Did the codicil revoke the power given the trustees in the will to sell the land or to convey it to Charles A. Hackett? The purpose of the testator in the codicil was to prefer Joseph to the other children, as the child for whom the farm should be held in trust after the termination of the two life estates, in case he should be then surviving; and this preference was founded on the probability that he would remain at home upon the farm with his parents. In the ordinary course of nature the child is expected to survive his parents, and the testator undoubtedly contemplated Joseph's surviving his father and mother. This also appears from the provision authorizing a conveyance to him subject to their life estates. The testator was of course aware that it was possible Joseph might not survive them; and it is not probable that the testator intended, in case he should not, a devise defeasible upon the termination of the two life estates. If it was intended to revoke the power to sell or to convey to Charles given in the will, we should expect he would have made some other disposition of the land upon the death of Joseph before that of his parents. In the absence of any express revocation of the authority to sell, we think the testator did not intend to revoke the power given to the trustees in the will.

The trustees, then, having authority to sell, were authorized to use their judgment or discretion, for the comfort of the beneficiary, whether to sell to a third person, to convey to Charles, to allow him to occupy the farm, or to rent it to others and appropriate the income to his use. Authority to sell includes authority to convey. The children being dead, it is no longer possible to convey to them. The trustees in the discretion vested in them have entered into a written agreement with the plaintiff to convey the farm to her, in consideration of her agreement to furnish Charles a comfortable home during his life. Her four children agree to perform her agreement in case Charles shall survive her. He accepts the transfer for his support as a full satisfaction of his claims under the will, and is ready to unite with the defendants in the conveyance of the farm to the plaintiff. Mrs. Leighton is ready to discharge the trustees from all obligation on account of her annuity, and to join in the deed in release thereof. The plaintiff offers to pay to the trustees the amount expended by them ($107.78) on account of the title to the farm and of the adjustment of the settlement. It thus appearing that all parties interested assent to the proposed transfer of title, the discretion exercised by the defendants in entering into the stipulation is not open to review except for want of good faith, of which there is no suggestion. They had the power to enter into it. That it was a wise arrangement to make for the support of the cestui que trust, and a judicious exercise of the discretion vested in them, seems clear, and there is no suggestion to the contrary. It has received the assent of Charles and of Mrs. Leighton, and there is no suggestion of fraud or mistake.

The contract being one which the defendants had the power to make, the discretion vested in the defendants appearing to have been judiciously exercised, and the plaintiff standing ready to perform it and having already entered upon its performance, the prayer for specific performance should be granted.

The difference between the agreement of the defendants in the body of the contract "to convey the farm," and their agreement in the addendum to quitclaim "the interest of the estate of W. H. Y. Hackett," is more fanciful than real. The interest of the estate of the testator in the farm was the farm itself at the time of his decease.

The claim of want of mutuality in the remedy is not well taken. No reason occurs to us why the defendants could not maintain a bill to compel the plaintiff to accept a deed and perform the contract.

The contract is not open to the objection that it is an engagement which a court of equity will not enforce because it is; "continuous, involving skill, personal labor, and cultivated judgment." The trustees are not charged by the will with the duty of providing for the support or comfort of the cestui que trust.

A decree for a conveyance to the plaintiff to have and to hold in fee, subject to and charged with all the rights secured to Charles by the testamentary provisions for a home, also subject to Mrs. Leighton's lien for her annuity, will answer every objection made by the defendants.

Decree for the plaintiff.

CLARK, J., did not sit: the others concurred.