Decided November 3, 1948.
No trust will be implied from a bequest of a life estate to specifically named life tenants of the residue of the testatrix' estate with the power to use so much of the principal as should be requisite for their support and comfort where they were primary objects of the testatrix' bounty and the will makes no mention of a trust estate or of a trustee or in any way alludes to either. The fact that no intent to establish a trust is disclosed by the will and appointment of a trustee is sought upon no other ground renders the appointment unnecessary.
CERTIFICATION, by the Probate Court of questions arising out of a petition by John Ashley Gile for the appointment of a trustee to administer in trust the residue of the estate of Katie E. Gile, late of Hanover, deceased. Laws 1947, c. 90. The petitioner is a nephew of the testatrix. The latter bequeathed and devised all of her real estate, household goods, and clothing to her brother, George E. Gile, and his wife, Vesta L. Gile, who are parties defendant. A watch, jewelry, and silverware were left to children of the petitioner. The petitioner was bequeathed one-fourth of the remainder of the estate. The fifth clause of the will provides as follows: "All the rest and residue of my estate I give and bequeath to my brother, George E. Gile and his wife, Vesta L. Gile or to the survivor of them for and during their lifetime, with the right to use any part of the principal as well as the income thereof necessary for their support and comfort, and from and immediately after their decease whatever then remains of said residue to go to my said nephew John Ashley Gile to him and his heirs forever." The testatrix named her brother sole executor "to serve by giving nominal bond." The residue of the estate amounts to approximately $25,000.
The petition alleges that the testatrix intended by the quoted clause to establish a trust, with the defendants as trustees; and that they are unsuitable to serve as trustees by reason of advanced age.
The questions certified and transferred by Dodge, Judge of Probate, are as follows:
"(1) Was it the intention of the testatrix to create a Trust under Clause Five of her said Will?
"(2) Should a Trustee be appointed to administer the property devised under Clause Five of said Will?"
Cotton, Tesreau Stebbins (Mr. Stebbins orally), for the petitioner.
Carr Gifford (Mr. Gifford orally), for the defendants.
The testatrix plainly intended that her brother and his wife should have life estates in the residue of her estate, with power to use so much of the principal as should be requisite for their support and comfort. No provision was made by the testatrix for the intervention of a trustee, and we are of the opinion that no trust should be implied.
The testatrix expressed her confidence in her brother by naming him sole executor of her will "to serve by giving nominal bond." She intended the residue to be first used for the benefit of the defendants, and at their deaths the petitioner is entitled only to "whatever then remains." "The fact that the will makes no mention of a trust estate or of a trustee or in any way alludes to either, is evidence that the testator did not intend to create such an estate." Walker v. Hill, 73 N.H. 254, 256. See also, Little v. Colman, 74 N.H. 215. The life tenants may fairly be said to have been the primary objects of the testatrix' bounty; and her intention that they should enjoy her bounty without the interposition of a trustee is sufficiently manifest. Weeks v. Weeks, 5 N.H. 326; Donovan v. Smith, 81 N.H. 83, 84; Kelley v. Keniston, 87 N.H. 43; Belford v. Olson, 94 N.H. 278, 280, 281. See Restatement, Property, s. 202, comment e, s. 203. The first question certified is answered in the negative.
Since the will does not disclose intent to establish a trust, no trustee should be appointed upon the pending petition. Further consideration of the nature of the relationship of the parties is not required, nor need their respective rights and duties be here defined. The life tenants' right to the principal is limited by the will, and the interest of the petitioner may not rightly be disregarded by them. Restatement, supra, s. 204, comment a. If that interest should at some time be threatened, he will be free to seek recognized remedies. Restatement, supra, s. 203, comment d, ss. 205 — 207; 31 C.J.S. 76, s. 59, et seq. See Annotations, 14 A.L.R. 1066; 101 A.L.R. 271; 138 A.L.R. 440. The petition does not purport to seek appointment of a trustee in disregard of the intention of the testatrix, and suggests no occasion for an appointment if none was intended by her. The second question is also answered in the negative.