The authorities relied upon by the appellants may be distinguished from the case before us. In the cases where the courts permitted deviation from the beneficial provisions of the will, they were permitted by a fair interpretation of the instruments to find an intention on the part of the testator to permit it. As an example, in Petition of Wolcott, 95 N.H. 23, 26, 56 A.2d 641, 643, 1 A.L.R.2d 1323, 1326, the widow of the decedent was to receive the income of a trust for life. Upon her death principal and accumulated income was to go to decedent's issue. Changed conditions made it difficult for the widow to get along with only the income, and her two sons joined the trustee in asking for authority to invade the principal to meet her reasonable needs.
In any event, American courts applying the equitable principle embodied in Restatement (Second) § 167 emphasize effectuation of the trust's purpose over the benefits of modification to a beneficiary. See, e.g., Rogers v. English, 130 Conn. 332, 33 A.2d 540 (Sup.Ct. of Errors 1943) (it is the necessity of the situation, not the fact that deviation is good for beneficiaries, that is significant); Reedy v. Johnson's Estate, 200 Miss. 205, 26 So.2d 685 (1946) (advantage to beneficiaries is not significant compared to testator's intent in the court's determination of whether to permit deviation); In re Wolcott, 95 N.H. 23, 26, 56 A.2d 641, 643 (1948) (rejecting consent requirement since "[s]trictly applied, [a consent requirement] may prevent accomplishment of the testator's primary purpose"). 2. Benefits of Deviation to Most
In light of the realities of the situation, the desire of all concerned to have the trust terminated, and the evident purpose of the will, the Court shall order the trust terminated and the corpus distributed to the life tenant. Cf. Wolcott's Petition, 1948, 95 N.H. 23, 56 A.2d 641, 1 A.L.R.2d 1323. This, however, is conditioned upon the furnishing of a bond to protect any unascertained remaindermen. Defendant Blakelock's motion for summary judgment is granted.
See Bedgood v. Thomas, 220 Ga. 262 ( 138 S.E.2d 313) (1964) (noting that court of equity "may under certain circumstances modify the terms of a trust"). See In re Woolcott, 56 A.2d 641 (N.H. 1948), cited in comment to OCGA § 53-12-153; see also George G. Bogert George T. Bogert, The Law of Trusts Trustees § 561 at 234 (Rev. 2d ed.).; Austin W. Scott William F. Fratcher, IIA The Law of Trusts § 167 (4th ed.). Other courts have permitted trustees to do a variety of acts not authorized by the terms of the trust, including to make certain types of investments; to pay benefits past a trust imposed deadline, and to sell trust property.
Rather, "[t]he word `issue' means child, grandchild, or other lineal descendant." Kimball v. Penhallow, 60 N.H. 448, 451 (1881); see also Petition of Oliver Wolcott, 95 N.H. 23, 25, 56 A.2d 641, 642 (1948) (interpreting "issue" in will drafted in 1932 as "lineal descendants"). This common definition was applied by the probate court.
On the contrary, the portion of the statute directing him to improve the estate "frugally and without waste" implies the power to make gifts which will prevent waste of the estate's assets. See Amoskeag Trust Co. v. Haskell 96 N.H. 89, 96, 70 A.2d 210, 216 (1950); In re Sabolevski, 107 N.H. 256, 220 A.2d 745 (1966); Petition of Wolcott, 95 N.H. 23, 56 A.2d 641 (1948). While we conclude that the probate court has the power to authorize gifts from the estate of a ward, we express no opinion on the merits of the petition to make the specific gifts in this case.
Morse v. Osborne, 75 N.H. 487. See Parker v. Carpenter, 77 N.H. 453; Kimball v. Penhallow, 60 N.H. 448; Jenkins v. Jenkins, 64 N.H. 407; Petition of Wolcott, 95 N.H. 23; Sylvester v. Newhall, 97 N.H. 267, 271. This view represents the overwhelming weight of authority. Annot. 86 A.L.R. 2d 12, 80.
I find nothing in the will to indicate that when the testator used the word "issue," the ordinary meaning of which happens to be embodied in a statutory definition found in RSA 21:20 (Sylvester v. Newhall, 97 N.H. 267; Kimball v. Penhallow, 60 N.H. 448), he intended that other statutory provisions relating to intestate descent and distribution (RSA 551:1) should be utilized to require in given contingencies that certain of his "issue" should take by representation or per stirpes rather than "in equal shares" as the will expressly provides. See Sylvester v. Newhall, supra. Compare the wills before the court in Thyng v. Lane, 69 N.H. 403; Petition of Wolcott, 95 N.H. 23, 25; Amoskeag Trust Co. v. Haskell, 96 N.H. 89.
White v. Corinthian Lodge, 100 N.H. 138; Langdell v. Dodge, 100 N.H. 118. Once the testator's expressed intent is ascertained it prevails ". . . at times at the expense of other recognized principles deemed less cogent in their application." Petition of Wolcott, 95 N.H. 23, 26. Even in those cases where the testamentary plan is impossible or impracticable of operation in part that construction is favored which salvages as much of the remainder as is consistent with the general purposes of the will. Jacobs v. Bean, 99 N.H. 239. This constructional preference for the maximum validity of the testator's dispositive plan applies to all wills. No distinction is made whether the will is "crudely drawn" (Adams v. Hospital, 82 N.H. 260, 261), as in the present case, or whether the will is drawn with legal assistance with some ambiguity (Roberts v. Tamworth, 96 N.H. 223), or without legal assistance with some ambiguity (Wilkins v. Miltimore, 95 N.H. 17, 18).
Restatement, Trusts, s. 167 (1) and comment. The doctrine of deviation has been frequently applied in this state although not always so denominated. Brown v. Berry, 71 N.H. 241; Petition of Oliver Wolcott, 95 N.H. 23; McGill v. Young, 75 N.H. 133. While deviation is allowed only for cogent reasons and only to the extent necessary to effectuate the primary purpose of the trust (Citizens Nat'l Bank v. Morgan, 94 N.H. 284), the equitable power to permit it is clear. 1 Nossaman, Trust Administration and Taxation, s. 553. The judicial authority to permit deviation from the terms of the trust as it relates to trust property and investments where "a change of circumstances . . . would defeat or substantially impair the accomplishment of the purposes of the trust" is confirmed by the express provisions of R. L., c. 371, s. 4. That this statute is more limited than the general equitable power of the Superior Court in trust matters is evident from the last sentence of R. L., c. 371, s. 4. It provides that "This section shall not be construed to limit or restrict the general equitable jurisdiction of the court over trustees, trusts or trust funds."