The contention of the defendant, that a portion of the unexpended income of the $2,000 trust fund belongs to him, cannot be sustained. His first position is that the income unexpended by Charlotte Stark and himself as trustees, amounting to $1,816.29, did not go to the plaintiff as trustee of the fund, but belongs to the residuary legatees of Harriet Stark. There would seem to be no basis for such a conclusion.
Whether the testatrix intended that Charlotte, Caroline Julia and Mary Elizabeth Stark as trustees should spend all the income of the fund in the care of the cemetery cannot be determined by the will. But it is apparent that in the gift of the fund to St. Paul's School, she thought all of the income might not be required in the care of the cemetery, for she provided that any income not so needed should be expended for the benefit of the school. There is no intimation in the will that any unexpended income of the fund should be paid to her residuary legatees. Neither is there any provision in the will for a forfeiture of the trust fund or any part of it, in case its execution should fail in any particular; "and it is a principle adopted by courts in the construction of charitable trusts, that the absence of a provision for forfeiture is evidence that the donor did not intend the estate should revert while the carrying out of his general purpose is practicable." Keene v. Eastman, 75 N.H. 191. It was probably the intention of the testatrix, if the trustees named by her did not use all of the income of the trust fund in the care of the cemetery, that the balance unexpended should go to St. Paul's School.
If such was not her intention her will would undoubtedly have provided for the disposition of any unexpended income in the hands of the Stark trustees. *Page 138
The second claim of the defendant, in case his first position is found untenable, is that the portion of the unexpended income that was accumulated during his administration of the trust belongs to him, he having taken the trust on the same terms as it was offered to St. Paul's School.
The defendant points out no way by which this claim can be maintained. He was appointed trustee upon the refusal of St. Paul's School to assume the administration of the trust, and cared for the cemetery, but that does not give to him the income not needed for its care. There is no provision in the will that gives the income not required for the cemetery to any one except St. Paul's School. Although the defendant may have desired to assume the trust on the same terms as the school was to have it, still he cannot do so, for there is no language in the will that makes it possible.
The title to the trust fund of $2,000, and to the accrued income from it, is in the plaintiff as trustee.
The plaintiff as trustee can use such a part of the unexpended or accruing income of the trust fund as is necessary to keep the. Stark family cemetery, its walls, railings and monuments in good repair, and the surrounding grounds in good taste and neat condition, and if improvements, repairs or new construction are necessary to keep the grounds in good taste and neat condition, it is within the province of the trustee to make them. How he shall care for the cemetery, and make improvements, and the amount of money to be used therefor is within the discretion of the trustee. But his discretion is to be exercised fairly and reasonably, and is subject to revision, and whether he properly exercises it, is a question of fact for the trial court in case any controversy arises in relation thereto. Cram v. Cram, 63 N.H. 35; Abbott v. Abbott, 76 N.H. 225. Whether any of the unexpended income should be retained by the trustee for unexpected emergencies is not a question of law.
That part of the income of the trust fund not required for the care of the cemetery should be paid by the trustee to the president and trustees of St. Paul's School to be expended for the benefit of the school at their discretion. The primary object of the testatrix in the portion of her will under consideration was to provide for the perpetual care of the Stark family cemetery. The secondary purpose was to benefit St. Paul's School. The president and trustees of the school were unwilling to undertake the management of the cemetery and declined the trust. But it does not appear that they have refused to accept the surplus income and execute the *Page 139 further trust of expending such surplus "for the benefit of said Saint Paul's School." It is not probable that they will so refuse. Until such refusal appears, it is not useful to consider what should be done with the surplus in that event. The declination of the president and trustees of St. Paul's School to accept the trust did not defeat it. "The effect was merely to leave its execution to another trustee. It is a rule without exception that equity never allows a legal and valid trust to fail for want of a trustee." Campbell v. Clough, 71 N.H. 181, 183; Wilson v. Towle,36 N.H. 129.
The trustee by applying as much of the income of the trust fund as is necessary to the care of the Stark family cemetery, and paying the balance to the president and trustees of St. Paul's School will execute the trust in conformity with the intentions of the testatrix as expressed by her will.
Case discharged.
All concurred.