111 A.2d 198

AMOSKEAG TRUST COMPANY, Trustee v. ROGER S. WENTWORTH a.

No. 4361.Supreme Court of New Hampshire Hillsborough.Submitted December 7, 1954.
Decided January 19, 1955.

A bequest in trust with the income and such portion of the principal as in the judgment of the trustee may be reasonable and proper to be paid the testatrix’ son or for his benefit to satisfy his personal necessities and needs with the further provision “that no part of . . . the income . . . shall be used for the benefit or support of any other person than my said son,” with remainder to a named charity, empowered the trustee to exercise its discretion as to payments of income to the son.

Such bequest did not authorize payments by the trustee which would contribute only to the son’s happiness, contentment and peace of mind regardless of his need, but limited payments to those reasonably necessary to meet his personal necessities and needs considering the manner and style he was accustomed to live and any resources of his own.

A trustee in a petition for instructions is not entitled to advice upon the question of what standards control the trustee’s discretion in payment of income or invasion of principal prior to the arising of specific questions of doubt or conflicting claims and unless the advice of the court is necessary for the trustee’s protection.

PETITION, for instructions brought by the plaintiff as trustee under the will of Blanche M. Wentworth, late of Manchester, deceased. The defendants are Roger S. Wentworth and American Red Cross, beneficiaries under the trust and Ernest R. D’Amours as Director of Charitable Trusts for the State of New Hampshire.

The following clause of said will is involved: “Eighth: To the Amoskeag Savings Bank of Manchester . . . I give in trust one-third (1/3) of the residue of my estate . . . said amount to be held by said Bank in trust for the benefit of my son, Roger S. Wentworth . . . and the income and such portion of the principal as in the judgment of said Amoskeag Savings Bank may be reasonable and proper, to be from time to time paid to my said son or for his benefit in order that his personal necessities and needs may be paid.

“It is my will and direction that no part of said trust fund or

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the income thereof shall be used for the benefit or support of any other person than my said son and this trust fund is established for the benefit of my said son personally and for no other use, purpose or person.

“Upon the death of my said son . . . if there shall then be remaining . . . any portion of the aforesaid trust fund, then I give and bequeath such sum as may be remaining to the American Red Cross . . . . ”

Advice and direction is requested as to the following:

“I. Does the Trustee have any discretion as to payments of income to Roger S. Wentworth?

“II. Is the use of either income or principal or both limited to payments necessary to support the beneficiary in the manner and style to which he was accustomed at or about the time of testator’s death or does such use extend to payments which the Trustee shall find will contribute to the beneficiary’s happiness, contentment and peace of mind regardless of his need for them?

“III. What other standards, if any, control the Trustee’s discretion in payment of income or invasion of principal?”

All questions raised by said petition were reserved and transferred without a ruling by Grimes, J.

Warren, Wiggin, Sundeen Nassikas for the plaintiff, furnished no brief.

Ernest R. D’Amours, Director of Charitable Trusts, pro se.

The remaining defendants entered no appearance.

LAMPRON, J.

The answer to the first question is in the affirmative, that is, the trustee has discretion as to payments of income to Roger S. Wentworth.

What the testatrix intended is the sovereign guide in the interpretation of her will. Amoskeag Trust Co. v. Haskell, 96 N.H. 89, 91. She expressed her intentions as to the income of this trust fund as follows: “and the income . . . to be from time to time paid to my said son or for his benefit in order that his personal necessities and needs may be paid. It is my will and direction that no part of . . . the income . . . shall be used for the benefit or support of any other person than my said son.” The will also states that this fund “is established for the benefit of my said son personally and

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for no other use, purpose or person.” Although the record does not disclose the amount of the fund, if the trustee had no discretion in the matter and were required to pay all of its income to Roger at least as often as once a year (Nashua Trust Co. v. Burke, 84 N.H. 490, 491) regardless of the requirements of his personal needs and necessities, some of it could be used “for the benefit or support of . . . other person[s] than my said son” and for “other use, [or] purpose” than Roger’s needs and necessities contrary to the expressed intent of the testatrix.

In answer to the second question the use of either income or principal or both does not extend to payments which the trustee shall find contribute to the beneficiary’s happiness, contentment and peace of mind regardless of his need for them.

The testatrix in creating the trust used the words “necessities and needs” which are rather relative terms having no fixed or rigid meaning. Indian Head Nat. Bank v. Theriault, 97 N.H. 212, 214. However they do not cover that which is merely desirable and not reasonably essential. 65 C.J.S. 270, 273. Her adoption of necessity and need as a criterion of the nature of the payments she intended rules out those which might contribute to the beneficiary’s happiness, contentment and peace of mind regardless of his need for them (cf. Weston v. Society, 77 N.H. 576, 579) and limits payments to those reasonably necessary in view of all the circumstances. Orr v. Moses, 94 N.H. 309, 312. In determining what might be reasonably necessary to meet the personal necessities and needs of the beneficiary under all the circumstances the manner and style to which he was accustomed to live at or about the time of the death of the testatrix (Ellis v. Aldrich, 70 N.H. 219, 222) and his other resources if any are to be considered. Eaton v. Eaton, 82 N.H. 216, 218; Nashua Trust Co. v. Burke, supra; anno. 2 A.L.R. (2d) 1383, 1431.

The third question does not state any matter upon which the jurisdiction of the court to advise in the administration of a trust should be exercised. Cart v. St. Paul’s Parish, 71 N.H. 231, 233. If specific questions of doubt or of conflicting claims should arise later where the advice of the court is necessary for the protection of the trustee application may then be made therefor and further instruction will be given. Gafney v. Kenison, 64 N.H. 354, 357; Orr v. Moses, supra, 312.

Remanded.

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All concurred except DUNCAN, J., who was of the opinion that the trustee has no discretion with respect to the payment of income and therefore dissents in part.