Amoskeag Trust Co. v. Haskell

• Decision Date: 03 January 1950
• Citation: 96 N.H. 89,70 A.2d 210
• Parties: AMOSKEAG TRUST CO. v. HASKELL et al.
• Court: New Hampshire Supreme Court

Page 210

70 A.2d 210

96 N.H. 89

AMOSKEAG TRUST CO. v. HASKELL et al.

Supreme Court of New Hampshire.

Jan. 3, 1950.

Rehearing Denied Feb. 7, 1950.

See 71 A.2d 408.

Warren, Wilson, Wiggin & Sundeen, Manchester, for the plaintiff.

Hamblett, Griffith & Moran, Nashua (Robert F. Griffith, Nashua, orally), for the defendants Hughes and Youngman.

Robert C. Laing, Manchester, guardian ad litem, pro se.

Hansen & Towle, Chicago, Ill., and McLane, Davis, Carleton & Graf, Manchester (Alvin L. Hansen, Chicago, Ill., orally), for the defendants Parker Kendall, Daskey, Bastien, Korol, Anderson and Crawford.

The remaining defendants entered no appearance.

LAMPRON, Justice.

'The law is too well settled in this jurisdiction to require extended citation, that the testator's intent is the sovereign guide in the interpretation of a will, and this intent being ascertained the court must enforce it unless it is illegal or impossible to do so.' Stearns v. Matthews, 94 N.H. 435, 437, 55 A.2d 78, 79; Osgood v. Vivada, 94 N.H. 222, 50 A.2d 227. The testator's intention 'is determined as a question of fact by competent evidence, and not by rules of law.' Edgerly v. Barker, 66 N.H. 434, 447, 31 A. 900, 902, 28 L.R.A. 328; Osgood v. Vivada, supra, 94 N.H. 224. Such competent evidence are 'the situation of the testator, the surrounding circumstances, his family and relatives, the devisees and legatees, the nature, amount, and situation of his property, facts tending to place the court in the position of the testator * * *.' Stratton v. Stratton, 68 N.H. 582, 586, 44 A. 699, 700; Fletcher v. Cotton, 81 N.H. 243, 246, 123 A. 889; Bellows v. Page, 88 N.H. 283, 286, 188 A. 12.

The first question on which advice and direction is sought reads as follows: '(a) Should not paragraph XIV and XV be included in and made a part of the trust estate created under Paragraph XVI so that the plaintiff may settle its account?' The answer to this question is yes.

The testator was a layman eighty-six years of age. His was a sizeable estate. He personally drafted the will and codicil in question. The language used in these documents, as well as their composition and their general form, show that the testator possessed some knowledge of the meaning and use of legal terms and of the manner in which a will and a codicil should be drafted. However it would be unreasonable in construing the documents which he drafted for the purpose of ascertaining what his intentions were, to assume that he knew and appreciated all of the legal niceties which would have enabled one so versed to spell out the testator's intent in approved legal form.

The nature of the functions to be performed by the fiduciary under clauses XIV and XV do not differ essentially from those to be performed under clause XVI, except that the latter, involving more beneficiaries and more property, are consequently more complex. No preference can be assumed in favor of one fiduciary over the other as it is one and the same corporation acting in different legal capacities. Nor can it seriously be contended that the testator did not intend to have his estate administered and distributed to the objects of his bounty in the manner which would be the most efficient so to do without detracting in any way from the mode in which he wanted these benefits conferred.

By including in and making paragraphs XIV and XV a part of the trust estate created under paragraph XVI, thereby permitting the plaintiff to conclude its functions as executor and to carry out as trustees the duties imposed in paragraphs XIV and XV while concurrently performing its duties under paragraph XVI, carries into effect, in a practicable manner, the wishes of the testator as expressed in his will. See, 3 Page on Wills, Lifetime Ed., 510.

Question (b) deals with certain problems pertaining to the interpretation of paragraph XV of the will and for the sake of clarity this question will be divided into four parts. The first part of this question asks if the trust created under paragraph XVI is the trust referred to in the following sentence: 'This bequest to lapse at the termination of the trust, and I order and direct that my Trustees deed same to the said Elizabeth K. Korol, or her descendant or descendants, in equal shares; if no descendant or descendants to take, same to become a part of the residuum of my estate.' The answer to this part of question (b) is yes. An application of the rule that the language of a will is to be given a literal interpretation, in the absence of evidence that the testator used it in a different sense, McAllister v. Hayes, 76 N.H. 108, 79 A. 726, leads to the conclusion that by those words the testator had to be referring to the trust in paragraph XVI. The reason therefor being that in all the paragraphs preceding paragraph XV the testator was talking of a 'trust fund'. The words of paragraph XVI would be the only ones which would lend themselves to the appellation of 'the trust'.

A reading of this will as a whole, to ascertain the intent of the testator, gives the same result. The testator by the wording of this paragraph anticipated that 'the termination of the trust' which would make the bequest lapse could take place during the lifetime of said Elizabeth K. Korol. All the other trusts expressly or impliedly created in the paragraphs of the will other than paragraph XVI are perpetual as to duration. That in paragraph XVI is the only one which contemplates a termination within the lifetime of said Elizabeth K. Korol and the only trust which can reasonably be understood to be referred to by the testator in said paragraph XV.

Question (b) second part asks if the ward 'same' when used in that paragraph means both 'the residence and the furnishings therein contained'. The word 'same' is used five times in said paragraph. If we tried to interpret its meaning each time it is used by a strict application of the rules of whether it refers to the last antecedent or to an antecedent other than the last, we would be accentuating the form of expression rather than the substance of this lay testator's intent as expressed in his will.

The first time the word 'same' is used the testator must necessarily have been referring to the residence at 113 Myrtle Street. At this point he has fully described the object of his bequest and devise i. e. the residence, the furnishings therein and the grounds on which the residence is located, which together constitute the subject matter of this paragraph. From then on whenever the word 'same' is used it refers to all these three components which are treated by him as an entity, one establishment consisting of a residence, furniture and grounds, the subject matter of his gift.

Question (b) third part reads as follows 'Under paragraph XV, may the trustee expend money to repair the furniture named therein or to replace worn out furniture?' As to repairing the furniture the reasoning used in answer to the second part of this question compels the conclusion that the trustee not only may but must keep the furniture in a state of repair. As to the trustee expending money to replace worn out furniture the answer is that it cannot. If the testator had intended the trustee to replace the furniture he could have said so very easily and very plainly. He did not do so. It must be that he did not so intend. Power to replace is not expressly or impliedly given to the trustee by the terms of the trust, nor is it necessary to carry out the purposes of the trust. It cannot therefore incur expenses for that purpose. Restatement, Trusts, § 188, comment e. See Annotation 172 A.L.R. 1283.

Question (b) fourth part requesting instruction as to the rights of the children or heirs of Elizabeth K. Korol in the event of her death and the rights of the parties in the case of loss of said buildings and contents by fire needs no answer at this time. Orr v. Moses, 94 N.H. 309, 312, 52 A.2d 128.

The following four questions will be discussed together: '(c) Under the last sentence of paragraph XVI, can any income be divided until the death of all persons given a life interest, namely: Adela Parker Kendall, Verona C. Kendall, Mary Campbell McGlone, Mrs. Florence B. Fisher and Alice G. Haskell.' '(d) The last sentence of paragraph XVI of the will directs that upon the death of Adela Parker Kendall and others 'the total net income be divided per stirpes among the children of my brother, Elmer' etc. Does this mean that upon the death of the survivor of those named all income which has accrued up to that time and has not otherwise been paid out is thereupon to be divided 'among the children of my brother Elmer'; or does it mean that this accrued income in effect shall become a part of the principal and that the current income only is thereafter to be distributed?' '(e) Under the provisions of Paragraph XVI does the trust terminate at the death of the survivor of Adela Parker Kendall, Verona C. Kendall and Mary Campbell McGlone, or ten years after the death of all the persons mentioned in the last sentence of said Paragraph XVI?' '(g) (added by agreement) Have any of the interests of the remaindermen under the trusts created by the will indefeasibly vested, and if not, when will they indefeasibly vest?'

This estate has produced since the decease of the testator and is now producing a substantial income much more than is necessary to pay the annuities provided for in the will and the expenses of administration. 'Where a testator establishes a fund, the income from which is to be used for certain purposes, but that income is in excess of the amount required for those purposes, the question whether the excess shall accumulate and be added to the...