Opinion
No. 4119.
Decided April 26, 1952.
Bills for advice and instructions are maintainable only by fiduciaries in regard to questions necessarily arising in the administration of their trusts. A bequest of "the sole use and income" from the remainder of the testator's estate, with a further remainder to others, with no mention of a trust created but a life estate with no imposition of a trust.
BILL IN EQUITY, by an administrator for advice and instructions. Herman C. Gay is the administrator with will annexed both of the estate of his father Clarence O. Gay, late of Windham and of that of his mother Ida M. Gay, late of said Windham. He is also mentioned as a beneficiary in the third clause of each will. The beneficiaries under the two wills were duly notified but have not appeared in the proceedings.
The material portions of the will of said Clarence O. Gay are as follows:
"2. All of my estate whether real, personal or mixed and wherever the same may be situated I give and bequeath to my beloved wife, Ida M. Gay for and during the term of her natural life, she to have the full use and income therefrom with the right to use so much of the principal as she may deem necessary for her comfortable support and maintenance.
"3. At the decease of my said wife or in case my said wife should not survive me I give and bequeath any remainder of my estate to my son, Herman C. Gay of Lowell, Massachusetts, he to have the sole use and income therefrom during the term of his natural life and at his decease the remainder therefrom to be divided equally between my next of kin who are living at that time and the next of kin of my wife, Ida M. Gay, who are then living.
"I hereby nominate and appoint my said wife, Ida M. Gay, to be the sole executrix of this will and it is my request that she be allowed to serve as such executrix without giving bond and I expressly authorize my said executrix to sell at public or private sale any real estate of which I may die seized, she giving therefor any proper form of deed."
The material portions of the will of the said Ida M. Gay are identical with the above quoted portions of the husband's will, save for changes necessary to indicate that the husband is the life beneficiary and executor instead of being the testator, and that the next of kin of both take under her will as well as under his.
Wescott, J., reserved and transferred without ruling all questions of law raised by the advice and instructions sought by the administrator on the following:
"1. Is Herman C. Gay entitled, under the third clause of said will, to an absolute interest in the residue of the estate free from any trust or life estate?
"2. Is Herman C. Gay entitled, under the third clause of said will, to a life estate free from any trust?
"3. Was a trust created under the third clause of said will?
"4. If questions (2) and (3) are answered affirmatively, may Herman C. Gay invade the, principal of the residue?
"5. If question (4) is answered affirmatively, is there any limitation upon the purposes Herman C. Gay may expend the principal?"
A previous transfer of this case is reported in 97 N.H. 102.
Charles J. Flynn, for the administrator, furnished no brief.
Bills for advice and instructions are maintainable only by fiduciaries in regard to questions necessarily arising in the administration of their trusts. They are designed to furnish protection to them in the discharge of their duties and facilitate the execution of their official functions. Bisson v. Gosselin, 90 N.H. 273, 275; In re Estate of Gay, 97 N.H. 102, 105. "It does not include advising a legatee or devisee concerning his private rights and duties, although such beneficiary may also be a fiduciary." In re Estate of Gay, supra.
Although the record does not disclose the nature of the assets of the estate, a problem might arise as to whether or not the assets should be receipted for by a trustee under the terms of these wills. See Kelley v. Keniston, 87 N.H. 43, 44.
Accordingly the administrator is advised that Herman C. Gay is entitled under the third clause of each of said wills only to a life estate and that no trust was created thereunder. In re Gile Estate, 95 N.H. 270, 271.
In view of the advice given no answer is required to questions 4 and 5. Wallace v. Brown, 89 N.H. 561.
Case discharged.
All concurred.