Little v. Colman

The testatrix, by the second and third clauses of the will, gave to one of her daughters during life "the use" of the Vassalborough farm, and to the other daughter during life "the use" of the family homestead. Obviously, "the use" intended was to be direct, — of the property itself, without the intervention of a trustee or other agency. Each daughter took a life estate in the real estate of which she was to have the use, and the plaintiff, as trustee, has no duty to perform in respect to such real estate.

By the fifth clause of the will, the testatrix gave to her daughters and the survivor of them, during life, "the income from the rest" of her real and personal estate. "The rest" consists of two lots of land in Manchester having buildings upon them. The income from these lots is the gain or profit which comes in or arises from the use of them, either directly by the owner in person, or indirectly by tenants. The use of the term "income" in the connection in which it appears in this clause would be proper if the intention was that the property should be held in trust by a third person, and the gain or profit arising from its use was to be paid over to the legatees. But if such were the intention, it would seem as if the idea would be fully expressed and a trustee would be nominated to hold the property. "Income" is also used when the intention is that the legatee or grantee of it shall have the possession and control of the property from which it arises, without the intervention of a trustee. In Walker v. Hill, 73 N.H. 254, the provision in the will considered was, "I do also give to my said wife the income of the remainder of my estate during her natural life"; and it was held that the provision did not create a trust in respect to the property from which the income would arise, but gave the wife a life estate in the property. One reason for the holding was the absence of any mention in the will of a trust estate or a trustee. See, also, McClure v. Melendy,44 N.H. 469; Wood v. Griffin, 46 N.H. 230, 234; Merrill v. Baptist Union,73 N.H. 414.

This case very closely resembles Walker v. Hill. The will contains nothing, aside from the employment of the word "income" instead of "use," having a tendency to prove an intention to create a trust. This change from the term used in the preceding clauses may have arisen from the understanding of the testatrix that the legatees would not be likely to use the property in person, as they would that mentioned in the preceding clauses. No circumstances are disclosed in the case having a tendency to show why the testatrix should prefer a trust to a life tenancy. A life tenancy would as effectively secure to the daughters the income of the property as would a trust. If they could not manage it themselves, they could employ an agent to manage it for them. The remainderman would also be as fully protected in the one way as in the other. On the whole, it does not seem probable the testatrix intended that the property mentioned in the fifth clause of the will should be held in trust; and the plaintiff is so advised.

Case discharged.

All concurred.