Bellows v. Page, 88 N.H. 283, 188 A. 12 (1936)
Author: Anonymous

Facts: The Pet, is a beneficiary under two wills: one her father’s, the other her aunt’s.  The father left all his property to his wife and Pet half held in trust by wife w/ power to use for daughter’s maintenance.  The aunt left a one quarter interest to Pet, to be held in trust by the mother.  The Pet was a minor child at the time and after the drafting of the wills, the Pet’s mother died.   Df, Page, is her successor as trustee.

Issue: Whether the father’s will created a valid trust? Whether the aunt’s will created a valid trust? If either is valid, have they been terminated, and if so, what are the Pl’s rights to the trust funds?

Holding: The trust created by the will of Pet’s aunt is executed and Pet is entitled to full legal title to all property held by Df trustee.

Procedure: Petition for declaratory judgment by Pet, Bellows against Df, Page, the trustee.  The case was transferred to Supreme Ct of N.H.; Supreme Ct of N.H. discharged case until further proceeding were held by trial ct. 

Rule: The beneficiaries of a trust, if all consent and none are under an incapacity, can compel the trust’s termination if the continuance of the trust is not necessary to carry out a material purpose of the trust, although a fixed period has not expired.

Rationale: The aunt’s will imposed no duties on the trustee, no discretionary power, and no action was required by the Pet’s mother to effectuate any purpose of the testatrix. The will created a USE or a passive trust–governed by the Statute of Uses.  That statute applies only to trust created on freehold interests in land, however where the aunt’s will does not indicate whether real property, personal property, or both, it is not impossible for the ct to dispose of the case.  Modern cts execute passive trusts of personalty either by analogy to the Statute of Use or on the theory that any trust w/o a purpose is automatically executed. The Statute of Uses was passed before the Amer. Revolution and it is susceptible to judicial change.

The trust of the father does not fall under the same statute.  The words used are insufficient to create a spendthrift trust, but they do impose active duties on the trustee. It is an active trust and as such it is not executed under the statute of uses. The will gives the beneficiary full equitable title to the trust fund, for life and in remainder.  She is the only person with an interest in it. She is the sole owner.  The rule regarding the termination of the trust cannot be applied until after the facts constituting further evidence are determined by the lower court.