Judge of Probate v. Page

61 N.H. 500

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1881
• Status: Published

Opinion

Stanley, J.

When Ellen was fourteen years old, she was “of competent age to choose a guardian” (G. L., c. 185, s. 2), and she exercised her right by choosing her mother, who was appointed. There was an option as to the time when Ellen should be entitled to her legacy. Until it became due to her, her mother was to have the use of it; and a testamentary intention to give the mother the power of determining at which of the times mentioned it should be due would naturally have been expressed in plain terms. If the testator had meant Ellen should not have her legacy until she was eighteen, or until her marriage, he would not have provided that she might have it when she was fourteen. It was payable, if her guardian demanded it, when she was fourteen. If its payment was not then required, the mother would continue to be entitled to the income until the principal was demanded. Payment of the principal, without interest, could be postponed by the payee. If some other person than the mother were guardian, the plaintiff would be entitled to judgment. The mother, by supporting her daughter, would not acquire a right to the income after Ellen was fourteen. The mother, being guardian, and having the legal control of her own and her daughter’s interest in the fund, settled the question of time by demanding the legacy as guardian. The refusal of the executor to comply with the demand was a breach of the condition of the bond. Gookin v. Hoit, 3 N. H. 392, 393; Judge of Probate v. Kimball, 12 N. H. 165; Judge of Probate v. Couch, 59 N. H. 506.

Case discharged.

Blodgett J., did not sit: the others concurred.