Opinion
Decided December 2, 1930.
Devise of real estate to trustees, the trust to be managed in a prudent and business-like manner and for the best interests of the estate and to continue during the lifetime of testator's daughter and after her death "until such time as said trustees shall regard as a suitable time for the selling of the real estate . . . at which time I direct that said real estate be disposed of and said trust terminated." No prohibition was intended against a sale during the beneficiary's lifetime, if such sale is found to be in the interest of the estate and thereupon a license therefor may be issued by the probate court under P. L., c. 309, s. 13.
PROBATE APPEAL. The plaintiff is trustee under the will of Nancy L. Dutton. Two of the three trustees named in the will declined to serve, the third has died, and the plaintiff was appointed by the probate court. P. L., c. 309, s. 10.
By the terms of the residuary clause of the will a trust was created for the benefit of Nancy Bertha Sinnett, the daughter of the testatrix. The trustees were directed to manage the estate in a prudent and business-like manner and in a way that seemed to them to be for the best interests of the estate. The testatrix further provided: "This trust is to continue during the lifetime of my daughter, the said Nancy Bertha Sinnett, and after her death until such time as said Trustees shall regard as a suitable time for the selling of the real estate in said trust, at which time I direct that said real estate be disposed of, and said trust terminated."
The residuary estate in the hands of the trustees includes a business block on Main street in Concord. The plaintiff applied to the probate court for a license to sell this real estate. The license was granted, and the defendant, a remainderman, appealed on the following grounds: 1. Because "the issuance of said license is against the terms of Nancy L. Dutton's will." 2. Because "under the will it is expressly denied the right to sell this property until after the death of the beneficiary." 3. Because "It is not good business to dispose of said property at this time as the valuation is increasing."
On hearing the appeal, the superior court (Matthews, J.) found as a fact that it would be in the interest of the estate that the license be granted, and ruled as a matter of law that a sale at this time is permissible under the terms of the will. To this ruling and to the order of the court dismissing the appeal the defendant excepted.
Foster Lake, for the plaintiff.
Doyle Doyle, for the defendant.
Section 13 of chapter 309 of the Public Laws provides that the judge of probate, on application of a trustee, may "authorize and require the trustee to sell any property holden in trust, and to invest the proceeds of the sale in such manner as will be most for the interest of all persons concerned therein."
If the defendant's contention is correct, the clause of the will relating to the termination of the trust constitutes a prohibition during the beneficiary's lifetime against the sale of any of the real estate devised to the trustees even if sold under the authority of the statute — and this in spite of the expressed desire of the testatrix for prudent and business-like management. No reason is apparent for the adoption of so strained a construction. The language of a will should be literally interpreted unless there is evidence that it was used in a different sense. McAllister v. Hayes, 76 N.H. 108.
The natural import of the clause in question is simply that the trustees shall convert into cash (when it can be done advantageously) the real estate remaining in their hands after the beneficiary's death instead of applying to the probate court in accordance with the provisions of P. L., c. 309, s. 14, for leave to convey such real estate to the persons entitled thereto under the will.
This disposes of the first and second grounds of appeal. The third ground presents merely a question of fact which has been decided adversely to the defendant.
Exceptions overruled.
All concurred.