Cram v. Cram , 63 N.H. 35 ( 1884 )

The plaintiff seeks to recover a legacy of four hundred dollars given her in the codicil to her husband's will, and for a decree that it is a charge upon the land devised to the defendant. The defendant denies these positions, and insists that, even if they are sound, the plaintiff cannot maintain a bill in equity to recover the legacy. The defendant took the residue of the testator's estate, after the payment of the debts and legacies, and this legacy thereby became a charge upon the land. Piper v. Piper, 2 N.H. 439; Gookin v. True, 3 N.H. 288; Wallace v. Wallace,23 N.H. 149; Clough v. Elliott, 23 N.H. 182. But the plaintiff was only entitled to so much of it as she needed, and to be paid to her as she seemed to need it. It was, in legal effect, a bequest to the executor of four hundred dollars, to be held in trust for the benefit of the plaintiff, and to be expended by him for her in his discretion as she needed it. His discretion was to be exercised fairly and justly, not arbitrarily, and is subject to revision. Whether the defendant properly exercised his discretion is a question of fact; and the finding of the court, that she is entitled to three hundred and twenty-eight dollars, the balance of the four hundred unpaid, is a finding against the defendant on this point, and is conclusive, unless the plaintiff's right to it depended upon her living upon the farm. The bequest is of four hundred dollars, to be expended for her needs, and there is nothing in the will or codicil showing the testator's intention to make its payment depend upon her living in any particular place.

It is unnecessary to consider whether the plaintiff has a remedy at law, for, whether she has or not, this bill may be maintained. The plaintiff is entitled to the decree ordered at the trial term.

Exceptions overruled.

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