Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1914-04-22
RescriptinHitchborn
ct Ais VS.. Bradbury

preme court of Maine in the action
in equity of Charles S. Hichborn ct
ais. trustees, VS.. Charles Bradbury
ct al, a Kennebec county case, has
been received at the office or Z. =.
Stevens. clerk of courts for Penobscot
county. 1t follows:
This is a bill In equity seeking the
construction of the will of Eliza Ann
Bradbury, particularly the provisions
of the third clause, and asking the
court to define and interpret the linn
it. and extent of the discretionary
power given the trustees thereun-
der.
The defendant, Charles Bradbury, in
his answer joins in all the prayers OF
the compliments BILL asking the ad-
wise of the court:
The defendant, Eliza Louisa Brad
bury Wilson, filed an answer with de-
murrer inserted therein.
In argument under the demurrer it
| is denied at the outset that all those
interested are made parties to the bill.
This contention will be considered Ia
ter. The demurrer next denies that
| the allegations of the bill sufficiently
specify the particular clauses or
phrases in the will which the court
| is requested to construe. This position
| is untenable. r. S. Chap. 49, See: 6.
| Paragraph VIII, gives the court pow
| err ito determine the construction of
| wills and in cases of doubt, the
mode of executing a trust, and the ex
pediency of making changes and in
vestments of property held in trust"
| A bill for this purpose may also be
brought under the general equity pow
ers of the court. Warehouses; Equity
Practice, Sec. 237. Where no controver-
| sy has arisen, if any trust officer is in
doubt, it will be sufficient for him to
| point out the nature of the doubt. 1t
is accordingly clear that IL a con-
troversy has arisen, then the proper
allegation would be to point out the
controversy and the issue raised there
by. That is precisely what is done in
the plaintiffs bill with reference to
the only question involved. The court
will not assume to decide any other.
Paragraph three of the will provides
| said trustees are to apply the income
of said amount in their hands as trus-
tees for the support of said Charles and
his wife and children. if ne has any, in
sickness and health in such manner as
they shall judge will best minister to his
and their comfort and happiness. If all
of said trustees shall at any time be sat
isfed that il will be for the best inter
ests of him, the said Charles Bradbury,
and his family, for the said trustees TO
advance more or less of the principal to
him, and they shall upon examination so
find and certify, they can make such adj
vance as they shall deem for the best"
Paragraph 6 of the bill alleges pay
| ment of $4,000 to Charles Bradbury bs'
the former trustees under this provision.
Paragraph alleges: That said Eliza
! Bradbury Wilson has notified the present
trustees that she would oppose any fur
Their advance of principal to the said
Charles Bradbury and questions the right
of the trustees 10 make any further ad-
vances of principal under the provisions
of said will of Eliza Bradbury.
1 Mrs, Wilson in her answer, paragraph
egh, says, that as to the disposition of
the principal thereof they have no discre-
ton" These paragraphs of the bill and
answer directly put in issue the right of
the trustees to make further advances
of principal under the language of clause
three of tie will. and raise sufficient
doub as to theirt duty to authorize the
trustees in invoking the aid of the court
Limited to the single inquiry. what,
then, is the power of the trustees under
the language of this paragraph with re-
gard to their right to make advances OF
.'more or less of the principal? 1t seems
to us that to define the power We have
but to repeat the phraseology of the will
| IF all of said trustees shall at any time
be satisfied that il will be for the best In
terest of him the said Charles and his
family for the trustees to advance more
or less of the principal to him and they
shall upon examination so find and eerti-
fy then may then make such advance as
they shall deem for the best
It is the opinion of the court that the
trustees have power to do just what TINS
language naturally imports, They are
authorized by observing the requirements
to examine find and certify, to advance
to Charles Bradbury such part or even
all of the principal "a sthey shall deem
for the best.
Another question is raised, however,
! which 1t may be proper to examine
Does the discretionary power given 10
the trustees, originally named IN thls
will, as to Announcements of princi-
pal to Charles Bradbury, vest in their
successors?
1t is the opinion of the court, that a
Unstable inference cannot be deduced
from the language of the will, showing
an intention to confer upon the orig
inal board of trustees any powers, not
calculated to be vested in their sue
cessors.
Roverting now, to the demurrer, we
find the first objection directed to the
want of proper parties; this objection
is valid, and, although not raised in
the demurrer, answer or at the hear
ing, the court is bound to take notice
of it.
The children must be made parties
But in view of the fact that the only
issue on the merits is clearly raised
and fully decided, we do not think that
necessity or justice requires dis
missal of the bill.
The case may, therefore, be re-
manded to the sitting justice where