Decided December 2, 1930.
Devise to a trustee to pay the income and so much of the principal as it "may deem necessary and prudent for the care and maintenance of my . . . daughter . . . during her old age or infirmity or sickness or adversity" and should she die unmarried the remainder to vest in the children of a deceased sister of the testator. The income is payable to the daughter at least as often as once a year; payments from the principal are to be made only in cases of need arising from the causes above specified giving due consideration to the income enjoyed; but payment of principal for her education is unauthorized. Upon a bill for direction the court will not speculate upon a testator's intention under mooted contingencies which may never occur. The supreme court has no jurisdiction to find facts on evidence transferred from the superior court; but where the evidence only tends to sustain the allegations of the bill the court may assume that the parties are content to have the case disposed of in accordance with those allegations.
PETITION for advice, brought by the trustee under the will of Michael J. Burke.
The material part of the will is the following residuary clause.
"All the rest and residue of my estate, both real and personal, I give, bequeath and devise to the Nashua Trust Company, of Nashua, New Hampshire, for the following uses and purposes:
"To pay over the income and so much of the principal as said Trustee may deem necessary and prudent for the care and maintenance of my beloved daughter Mary A. Burke, during her old age or infirmity, or sickness, or adversity.
"In the event of the marriage of my beloved daughter said trust estate shall at once vest in my said daughter discharged of said trust. Should my said daughter die unmarried, the remainder in the hands of said trustee shall vest in the children of my deceased sister Lizzie McCarthy and their heirs forever."
The bill alleges that Mary A. Burke is a member of the Sisters of Mercy of the Roman Catholic church. As such she is supplied with the ordinary necessaries of life. She has defective vision, and trouble with her feet which requires expenditures beyond those for ordinary footwear. She is a teacher and desires to obtain further education, that she may advance in the order. None of these special needs are supplied by the order.
The trustee asks whether the beneficiary is entitled to the income in any event, and whether her special needs authorize payments from the principal. It is also alleged that there is doubt as to who will be entitled to the remainder, and direction as to that is asked.
Certain testimony is appended to the reserved case.
Transferred by Scammon, J.
Hamblett Hamblett, for the plaintiff.
Cobleigh Cobleigh, for Mary A. Burke.
Harry P. Greeley, guardian ad litem, pro se.
Daniel J. Moriarty and Walter W. O'Donnell (of Massachusetts), for other defendants.
The case is incomplete. It does not state whether the allegations of the bill were admitted, and the facts are not found. Certain evidence is transferred for the "assistance to the court in the determination of the questions involved." This court has no jurisdiction to find the facts in cases transferred from the superior court. Coles v. Railroad, 74 N.H. 425. It follows that the transfer of the evidence cannot affect the decision here. But as the evidence only tends to sustain the allegations of the bill, it is assumed that the parties are content to have the case disposed of in accordance with those allegations.
The trustee is advised as follows:
I. The income of the trust belongs to Mary A. Burke. The clause limiting payments relates to disbursements from the principal only. The income should be paid to her at least as often as once a year.
II. Payments to her from the principal can be made only in case of need, arising from the causes specified in the will, viz. — "old age, or infirmity, or sickness, or adversity." The beneficiary's defect of vision and trouble with her feet are plainly infirmities; and, so far as she needs funds for the alleviation thereof, payments may be made from the principal "as said Trustee may deem necessary." In determining the issue of need, the trustee should take into consideration the fact that she has the income. It was not the testator's intent that she should be allowed to give away or squander the income and thus create needs that could be met from the principal.
Payments to further the beneficiary's higher education would not come within the classes named in the will, and cannot be made out of the principal of the trust.
III. The question, to whom the residue of the fund should be paid at the death of the life beneficiary is one that does not require consideration at this time. The amount of the fund is not stated. It may be that the whole will be exhausted during the lifetime of the first taker, and that there will be no residue to dispose of. In such a situation, "It is, at least, doubtful if the court has power to give an answer that will bind the parties. . . . If facts hereafter occurring render an answer necessary, another application therefor can be made. Gafney v. Kenison, 64 N.H. 354." Stevens v. Douglass, 68 N.H. 209, 210. ". . . it has not been the practice to speculate upon the intention of a testator under mooted contingencies which may never occur. . . . Drake v. True, 72 N.H. 322, 323; Weed v. White, 81 N.H. 197." Adams v. Hospital, 82 N.H. 260, 263.