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ATHORNE v. ATHORNE

No. 4521.

100 N.H. 413 (1957)

MADELINE W. ATHORNE v. GEORGE O. ATHORNE AND CHARLES W. KINGHORN, Ex'r and Tr'ee u/w Grace L. Flint.

Supreme Court of New Hampshire.

Decided January 31, 1957.

Attorney(s) appearing for the Case

Cooper, Hall & Cooper and John M. Brant (Mr. Burt R. Cooper and Mr. Brant orally), for the plaintiff.

Upton, Sanders & Upton (Mr. Richard F. Upton orally), for the defendant George O. Athorne, specially.

Thomas H. Simes and Upton, Sanders & Upton (Mr. Richard F. Upton orally), for the defendant Charles W. Kinghorn, specially.

KENISON, C. J.

We agree with the plaintiff's contention that the residuary clause (clause 8), standing by itself, gave the trustee no discretion in the payment of the "annual net income" to the defendant Athorne. The trustee's "absolute discretion" under this clause is confined and restricted to the payment of a part or the whole of the principal if he "shall from time to time see fit." The concluding paragraph, clause 9, provides in effect that every bequest and...

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