As a general rule, to which this case forms no exception, the trustee cannot be charged, unless, at the time of the disclosure, the principal defendant had a right of action against him. Greenleaf v. Perrin,8 N.H. 273; Boardman v. Cushing, 12 N.H. 112; Getchell v. Chase,37 N.H. 106; Adams v. Barrett, 2 N.H. 374.
Where a trust is created for the benefit of a third person, and the trustee is vested with a discretion as to the time, amount, or manner of the payment to be made, he cannot be charged as trustee. Richards v. R. R.,44 N.H. 127; White v. Jenkins, 16 Mass. 62; Palmer v. Noyes, 45 N.H. 174.
At the time of the disclosure the trustee held in his hands a fund in trust for the principal defendant, and in the disposition of it he was vested with discretion, not only as to the time and manner, but as to the purposes for which it might be applied.
Exception overruled.
BINGHAM, J., did not sit. *Page 156