Kilburn v. Hosmer

Bigelow, J.

It seems to us quite clear, that the testator, in making the bequest in trust, for the benefit of his daughter Abigail and her children, did not intend that their entire support and maintenance should be derived from the trust fund created by him for their use, but that such sums only should be expended therefor, as the trustees in their discretion might deem just and proper.

The amount of the trust fund, taken in connection with the condition and circumstances of the daughter’s family, is quite decisive on this point. The daughter, at the date of the will, was under thirty years of age, and her children were in early childhood and infancy. They were all likely to require support for a long period of time. The trust fund was wholly inadequate to furnish an entire support for the wife and children, and to educate the latter, without a large and constantly increasing encroachment on the principal sum, which, in all probability, would eventually lead to its entire consumption. It cannot be supposed that the testator contemplated any such result, because he carefully provides for the distribution of the trust fund after the decease of his daughter. Besides ; it cannot be inferred, in the absence of any express declaration, that the testator intended to relieve the husband and father from all obligation to support his family during the existence of the trust fund. Such a construction would render the bequest a gift rather for the benefit of the husband than of his wife and children. Courts of equity are slow in giving such an interpretation ■ to gifts in trust for the maintenance of children as to discharge the parent from his duty to furnish them with an adequate support. Formerly, if the parent were of ability to maintain the children, trustees were not allowed any sum expended by them for maintenance, even though it was expressly directed by the will; but in modern practice this rule has been modified, and courts will now in the administration of trusts, dispense with any reference to the father’s ability to support his children, when the language of the will or other circumstances are very strong to indicate such intention on the part of the testator, or when the situation of the father and the amount of the trust funds are such as to justify such an administration of them. Willis on Trustees, 159, 160; Hughes v. Hughes, 1 Bro. C. C. 386, n.; Andrews v. Partington, 3 Bro. C. C. 60; Maberley v. Turton, 14 Ves. 499. There is nothing in the language of the will, or in the situation of the cestuis que trust, in the present case, to justify us in giving such an interpretation to the clause of the will creating the trust in question, as to relieve the father from his legal and moral obligation to furnish adequate support to his wife and children.

We think, too, there was a discretion vested by the terms of the will in the trustees, as to the expenditure of said funds. It was for them to judge of the amount necessary to the comfortable support of the cestuis que trust. It was made their duty by the express terms of the will to “ study the comfort and happiness of the testator’s children.” This they could do, only by such an administration of the funds committed to their charge for the benefit of the daughter and her children, as would most conduce to this end.

We are therefore of the opinion, that the allegations in the bill are not sustained; and as there is no averment of want of due discretion on the part of the respondents in the discharge of their duties as trustees under the will, there is no ground for the further prosecution of this suit.

Bill dismissed.