Brown v. Berry , 71 N.H. 241 ( 1902 )

1. By designating "the net income" of his estate as the fund from which the yearly payments to his son and daughter were to be made and the means for the education of his grandchildren provided, the testator evidently contemplated that the payment of the current expenses of administering the trust, like taxes, insurance, and repairs, should come out of the gross income; and the trustees are advised to act accordingly. Payments on account of the services and expenses of the trustees constitute a general charge upon the whole estate, and should be so treated. Bridge v. Bridge,146 Mass. 373, 377; Bartlett, Pet'r, 163 Mass. 509, 522.

2. The reading of the testator's will (66 N.H. 435-440) leaves no room for doubt that his primary and controlling purpose was to provide for the proper and reasonable support of his children and grandchildren, and for the thorough education of the latter "at home or abroad, at proper institutions of learning." For these objects he designated the net income of his large estate as the source of payment, and doubtless supposed (as he reasonably might) that it would be amply sufficient. For reasons which do not appear, there has ceased to be any net income. But this does not defeat the testator's purpose. The great weight of the competent evidence shows that he did not intend that his children should be without means of support, or his grandchildren without means of education, if for any reason the income should fail. His leading purpose was that the necessary means should be furnished by his estate in any event. That this purpose cannot be executed in the particular manner he intended, affords no valid reason why it should not be executed at all. Edgerly v. Barker, 66 N.H. 434, 473. "When the particular intent cannot be executed, the general intent must direct the construction." Ib., 470. We are therefore of opinion that the phrase, "to pay out of and from the net income of my estate," is to be construed rather by way of demonstration than condition, — rather as showing how or by what means the dominating idea of the testator may be effectuated than whether it shall not be effectuated in any other way. In other words, we construe the provisions for the support of the testator's children and for the education of his grandchildren as demonstrative and not specific, and consequently to be paid out of the fund he has pointed out, if possible, but otherwise from the general assets.

3. This inquiry is answered affirmatively. There is no rule of law requiring that the education of the grandchildren stop upon their arrival at the age of twenty-one years, nor is there any such intention to be gathered from the will. On the contrary, the trustees are specifically empowered to pay money to the grandchildren more than twenty-one years of age whenever their wants and necessities require it. Will, cl. 8, s. 5. It would seem to be clear that educational wants and necessities are not excluded, and especially in view of the testator's expression of his hope "that said children, each and all, will avail themselves of the opportunity to acquire a good education." Ib., cl. 3.

4. Further consideration of this inquiry is rendered unnecessary by the answer to the second request.

5. We are of opinion that the trustees may not safely make payments from the general estate to a grandchild, with his consent or that of his guardian, for his wants and necessities, educational or otherwise, and charge the same as an advancement to be accounted for out of his final distributive share. The share of a grandchild does not vest until the youngest of the grandchildren arrives at the age of twenty-one years (Edgerly v. Barker, supra); and if one of them dies before the attainment of that age, his representatives take his share (Ib., 447, 448, 449, et. seq.) and might not be bound by any advancement made to him. Nor does there appear to be any occasion for advancements (Will, cl. 8, s. 5); and, furthermore, it was the undoubted purpose of the testator to prevent the grandchildren from selling, incumbering, or squandering their shares before they should come into their absolute possession. Edgerly v. Barker, supra, 447, 448.

6. It being the declared intention of the testator that his son should be provided with a suitable dwelling-house for and during life, "free of all expense to him" (Second Codicil, ss. 1, 6), and the trustees being of the opinion that the house now occupied by him "is not sufficient or appropriate for the needs and accommodation of himself and his family," and that "repairs and additions thereto are necessary," we think that they may not only make such repairs from the general funds of the estate, but that, in the exercise of the broad discretion with which the testator has endowed them, they may also make such additions, betterments, and improvements as they deem necessary to render the buildings reasonably suitable under all the circumstances for the occupation of the son and his family, provided, that the value of the premises shall not thereby exceed $5,000, — the sum to which the trustees are limited by the will in purchasing or building a new residence the son at his election. Second Codicil, cl. 1.

7. The question whether payments out of the principal of the estate may be made to Charles B. Barker for his wants and necessities is not a matter of doubt as to which the advice or direction of the court may properly be required (Will, cl. 8, s. 5); and, moreover, it has already been incidentally, but sufficiently, considered in the answer to the third request.

Case discharged.

All concurred.