Volume 97 — New Hampshire Reports

In a devise by the testator of his residuary estate to his widow the phrase "without accountability to anyone" is indicative that the estate devised was intended to be more than a life estate although not necessarily an absolute fee, A bequest of the use of property is a bequest of more than the income and may include the power to invade a portion of the principal in the enjoyment of the use. Certain evidence justified the finding that the defendant breached his fiduciary duty toward the plaintiff and was guilty of constructive fraud in failing to fully and frankly inform her of the effect of incorporating the business of her husband, thereby obtaining the business assets for himself in exchange for unsecured notes. Relief by rescission is granted only upon the plaintiff doing what equitably should be done under all the circumstances. Where one breaches a fiduciary duty the Court may in its discretion deny all compensation, allow a reduced compensation or allow full compensation. One who is charged as a constructive trustee on the basis of constructive fraud is not to be penalized in awarding compensation particularly where there is no final loss to the beneficiary and the breach of trust is not intentional.