French v. Westgate , 71 N.H. 510 ( 1902 )

It has already been decided in this case that the will created in Westgate "a trust coupled with a power." French v. Westgate, 70 N.H. 229,230. The authority to sell does not appear to be limited to making sale as the agent of the son and daughter, or under their direction or control. The provision indicates that for some reason the testator desired to employ for his children the skill, judgment, and experience of the trustee in making sale of the property. The agreement of the son and daughter "to have the same sold," when made, instead of wholly terminating the trust, furnished the occasion for the performance of the trust as to the sale. The discretion of the trustee was, as has already been held, not unlimited. French v. Westgate, 70 N.H. 229. He had no power to sell until the son and daughter had agreed to have the lands sold.

The notice of March 10, 1894, by its terms was not a consent for a sale by the trustee under the discretion conferred upon him by the will, but limited him to a sale at auction at a certain time. Whether, if a sale had been made in accord with the terms of the notice, the agreement therein as to method and time would have been a protection to the trustee in case it should appear that in the exercise of a sound discretion a sale should not have been so made, is not now in question. Nor is it necessary to decide to what extent the beneficiaries could control the exercise of the trustee's discretion in making the sale. The trustee was not a party to the contract evidenced by the notice, and the rule excluding parol evidence varying a written contract has no application. Wilson v. Sullivan, 58 N.H. 260, 263.

Upon competent evidence it appears that the beneficiaries did not. agree to a sale except upon condition that the property should be sold for $6,000. As a sale could not have been made for that sum, there was in fact no agreement that the estate should be sold. If the trustee would have been justified in proceeding with a sale, disregarding the condition, the plaintiff cannot complain because the trustee did not insist upon the technical consent contained in the notice and sell the property without the consent in fact of the beneficiaries. Construed in the light of the fact that no person was willing to give the price at which the plaintiff and his sister were willing the property should be sold, the agreement was not an agreement for a sale, but an attempt to put an end to the trust by conveyance from the trustee to the cestuis que trustent, through the guise of a pretended auction. That a cestuis que trust may lawfully purchase the trust property of the trustee, does not authorize the trustee to deliver the trust fund to the beneficiary. Per Tr., s. 199. A conveyance of the trust estate to the plaintiff and his sister would not have been a sale such as the testator contemplated and empowered the trustee to make. As it is not found that the plaintiff and his sister agreed with reference to the subject of the trust "to have the same sold" in accordance with the will, the trustee is not in fault for not executing the trust. The exceptions to evidence were not argued and are understood to be waived.

Exceptions overruled.

All concurred.