Daily Kennebec journal., 1906-04-18
Exceptions Overruled.

l:llly pleaded, or, SllcC lne statute sci up
in a brief statement Of special matter of
defence.
Exceptions Overruled.
piscataquis county-Elvira L. Kimball
VS.. John II. Blanchard. Rescript by Will
well, c. j.
In this bill in equity, the complainant.
one Of the beneficiaries Of a trust created
by the will Of her mother. seeks Il decree
of this court directing the trustee to pay
her out Of the trust fund certain sum
of money. which she had previously de
manded Of him, and thereafter to pay hcr
such further and other sums, and at suc;I
times, as she, in her judgment, might
deem necessary for her comfortable sup
port and maintenance.
The clause in the will whereby the trust
was created is as follows: Second
do hereby give. pequeath and devise unto
John Fl. Blanchard. in trust. all of my
estate, real, personal ana mixed, wher-
ever found and however situated Said
trust is for the benefit of my daughter
Elvira L. Kimball, wife of Daniel Kim
ball. I do hereby request my said trustee
to convert into cash all my estate and
to invest the same where it will be Sc
cure. and keep same invested. x
l do hereby direct my trustee to pay to
my daughter, said E.lvira L. Kimball
such sums from time to time as She may
need for her comfortable support arl
maintenance SO long as she lives. / desire
my trustee to take into consideration Gn)
making said payment that it is the duty
and obligation of her husband to sup
port and maintain her. but if for any
cause her husband does not provide suit
able support and maintenance for her,
then l request my said trustee shall see
that the same IS provided ont Of the fund;
in his hands as trustee. 1t is my desire
that all of said property if necessary
shall be used for the benefit Of my daugh-
ter as herein set out"
BY the next clause OF the will the teS-
tatrix devised and bcqueathcd to the chit
dren of the complainant whatever might
remain OF this trust fund at the time of
the death of their mother.
Held: That by the language Of this
will above quoted the testatriX vested in
the trustee the discretion of determining
upon the amounts and the times of the
payments to be made to the complainant
and that the exercise of that discretion
by him is not subject to revision by this
court. so long as he has exercised that
discretion in good faith according to his
best Judgment and uninfiuenced by i'm
proper motives. That this discretion has
been properly exercised by the trustee.
While courts will sometimes decree tn"
termination Of a passive trust before thr
expiration Of the time named, or ono IN
which the purposes Of the trust have been
accomplished. or where no good reason is
shown why the trust should continue and
where all the persons Interested are sui
juriS and desire that the trust br tcrni-
mated, such a termination will not be de-
creed where these conditions do not exist.
The decree sought in this case is in prlr-
teal effect the termination Of the trust.
which is an active trust, the purposes of
which have not been accomplished. ana
where there are others than the com
plainant who are interested in the TRUST
fund.
The appeal must therefore BE- SUI stained
The bill will be dismissed. but without
costs. The defendant may charg" tn.
reasonable and necessary expenses Of thi.
litigation in his account rs trustee. to br
passed upon by the probate court. The
case is remandcd for Il decree in accord
ancc with the opinion.
Appeal sustained. The bill to be dis.
missed, hut without costs. The defendant
may charge reasonable and necessary cx.
ppnscs of this litigation in his Hccour.
as trustee. to be passed upon by the nr1-
bate court. Gas" rcma adcd fnr 4 deere.
in accordance with the opinion.