Colony v. Colony

• Decision Date: 01 July 1952
• Parties: COLONY et al. v. COLONY et al.
• Court: New Hampshire Supreme Court

Page 909

89 A.2d 909

97 N.H. 386

COLONY et al. v. COLONY et al.

Supreme Court of New Hampshire.

July 1, 1952.

Rehearing Denied July 29, 1952.

James I. Hines, Hillsborough, A. James Casner, Cambridge, Mass., and Paul V. Rutledge, pro se, for Paul V. Rutledge et al.

Sulloway, Piper, Jones, Hollis & Godfrey, Concord, for John J. Colony, Jr., et al.

Hamblett, Griffith, Moran & Hamblett, Nashua, for Ethel M. Aspin et al.

Howard B. Lane, Keene, Joseph A. Locke and Roger P. Stokey, Boston, Mass., for Murray S. Colony et al.

McLane, Davis, Carleton & Graf, Stanley M. Brown, Manchester, Tyler & Reynolds, Boston, Mass., Choate, Hall & Stewart Boston, Mass., for Karl Adams et al.

Devine & Millimet, Manchester, for Louise Colony Johnson.

William H. Watson, pro se, and William H. Watson, Jr., Keene, for Wm. H. Watson as guardian ad litem and as attorney for Davis Ellsworth Clarkson.

Arwe & Arwe, Keene, for Laurence D. Colony, Jr.

Upton, Sanders & Upton, Concord, for John J. Colony et al.

Howard W. Robbins, James D. Dow, Jr., and Howard S. Whiteside, Boston, Mass., for John K. Colony et al.

Philip H. Faulkner and N. Michael Plaut, Keene, for Alfred T. Colony.

Homer S. Bradley, Keene, guardian ad litem, for the allowance of trustees' account, pro se.

Jarlath Slattery, Newport, guardian ad litem against the allowance of trustees' account, pro se.

Arthur Olson, Keene, for Ruth Cutter et al.

Edgar L. Ryerson, Boston, Mass., for Stuart C. Hymers, adm'r of Mary L. Hymers' Estate.

Roy M. Pickard, Keene, for trustees.

LAMPRON, Justice.

The main issues before us for decision are the following, viz; 1) Julia, the testator's daughter, having died 'leaving no children or lineal descendants' who is entitled to the Five Thousand Dollar bequests made to testator's brothers Henry and George Colony; 2) Julia having so died and none of testator's brothers Timothy, Henry, George and Horatio being alive at her decease, as of what time are their heirs and those of Alfred (a brother already deceased at the making of the will) to whom the residue is given to be determined; 3) if their heirs are to be determined as of the date of death of Julia, there being then no children or lineal descendants of the brother Timothy, although there are of all the other brothers, a) is the residue to be distributed per capita to the heirs of the five brothers as a class or b) is it to be divided into four equal shares and distributed equally among the lineal descendants of the four brothers having same or c) is the residue to be nevertheless divided into five equal shares and Timothy's share distributed to his heirs according to R.L. c. 360, § 1, par. III; 4) as to Henry's share where there are seven grandchildren and two great grandchildren, the latter two issue of a deceased grandchild, all being the lineal descendants of four of Henry's children, is the share to be divided into eight or four equal parts.

All the parties are in agreement that, except for the last issue which involves for the most part the interpretation of R.L. c. 360, § 1, these questions are to be resolved by a determination of the testator's intent relative thereto gathered from his will read in the light of the competent evidence bearing upon its interpretation. Osgood v. Vivada, 94 N.H. 222, 224, 50 A.2d 227; Amoskeag Trust Co. v. Haskell, 96 N.H. 89, 70 A.2d 210, 71 A.2d 408. As to what the testator intended by his will there is, however, no such unanimity among them.

The task of determining his intent is not an easy one as plausible and able arguments have been presented for different views. No useful purpose would be served in a seriate consideration of the merits and fallacies of these arguments. It is sufficient to say that they were all duly considered in arriving at our decision and only those will be mentioned in the opinion as are needed to set forth our conclusions.

The gifts of $5000 each to Henry and George Colony were not intended by the testator to be subject to the requirement that the legatees survive Julia. The will contained no words expressly evidencing such an intention. Cole v. American Baptist Home Mission Society, 64 N.H. 445, 457, 14 A. 73; Dana v. Sanborn, 70 N.H. 152, 46 A. 1053; Stearns v. Matthews, 94 N.H. 435, 437, 55 A.2d 78. And the fact that their gifts were postponed as to enjoyment in possession to a date subsequent to the death of the testator did not in and of itself justify an inference that no gift was intended if they failed to survive to the end of the postponed period. Holmes v. Alexander, 82 N.H. 380, 386, 134 A. 536; Osgood v. Vivada, 94 N.H. 222, 225, 50 A.2d 227. Nor could such an inference be drawn from the express condition attached to their gift that Julia 'shall die leaving no children or lineal descendants.' Restatement, Property, § 261.

On the other hand the fact that the bequest to the children or lineal descendants of Julia which immediately precedes their gift, and that of the residue to Timothy, Henry, George and Horatio which immediately follows it, are both expressly made subject to the condition that the beneficiaries be living at the time of distribution, which condition is absent in, the gifts to Henry and George, is a strong indication that the testator did not intend to attach the condition of survival to their legacy. Their bequests should therefore be distributed to their respective legal representatives. Upton v. White, 92 N.H. 221, 226, 29 A.2d 126; Stearns v. Matthews, supra, 94 N.H. 438, 55 A.2d 78.

The testator having died in 1883 and the life tenant, his daughter Julia, on January 5, 1950 without ever having had children, and testator's brothers all having predeceased her, we now consider that portion of Article 'Fifth' of the will of John E. Colony which reads: 'But if my said daughter shall die leaving no children or lineal descendants, * * * the balance thereof I direct to be divided into five equal shares--and one share each to be given & paid over to my brothers Timothy Colony, Henry Colony, George D. Colony & Horatio Colony if living, otherwise to their heirs * * *.'

What is the meaning of the word 'heirs' as used by the testator in the above quoted portion of his will?

Argument is made that the word heirs has an ordinary well-accepted legal meaning, viz: those persons who succeed to a decedent's property at his death if he dies intestate, Simes v. Ward, 78 N.H. 533, 534, 103 A. 310, and that in the absence of appropriate evidence there is no reason to assume that a testator has used the word heirs in other than its ordinary meaning. It is further argued that there is no evidence in this case that the testator intended any other use; that consequently the word heirs in the above clause of the will 'otherwise to their heirs' was intended by him to mean those persons who, at the time of the death of each brother or at the time of death of the testator, as to those brothers who predeceased him (53 Harv.L.Rev. 207, 235), were entitled to inherit the property of the designated brother under New Hampshire law in force at that time.

Those who oppose this view argue that there is sufficient evidence to show that the testator intended to designate by the word heirs those persons who would have succeeded to each brother's property if he had died intestate at the termination of the life estate, namely, at Julia's death.

Under our decisions there is no presumption either way on this question. It is determined in each case by ascertaining the testator's intent by such competent evidence as tends to place the Court in his position. Burpee v. Pickard, 94 N.H. 307, 52 A.2d 286; Amoskeag Trust Co. v. Haskell, supra, 96 N.H. 91, 70 A.2d 210, 71 A.2d 408. And cases differ so widely in their facts that little aid can be derived from them in attempting to apply their law to the facts of a particular case. Harris v. Ingalls, 74 N.H. 339, 342, 68 A. 34; Remick v. Merrill, 80 N.H. 225, 227, 116 A. 344; Rogers v. Scagliotti, 96 N.H. 134, 135, 71 A.2d 407.

After giving careful consideration to all the factors involved, we are of the opinion that, when the testator used the words 'otherwise to their heirs' in the fifth clause of his will, he intended to have the heirs of his respective brothers determined at the time when 'his said daughter (Julia) shall die leaving no children or lineal descendants', on January 5, 1950 as the events turned out.

It seems to us that the wording of the fifth clause has overtones of futurity, viz; 'And upon the decease of my said daughter'; 'to the children or lineal descendants * * * then living, if any there shall be'; 'if living'. This language indicates to us that the testator intended to postpone selection of the remaindermen till Julia's death. Cf. Romprey v. Brothers, 95 N.H. 258, 61 A.2d 793. We arrived at this conclusion not by applying rules of law, Amoskeag Trust Co. v. Haskell, supra, or canons of construction, Redman v. Ring, 94 N.H. 195, 197, 49 A.2d 921, to his words or because he used certain technical terms, Osgood v. Vivada, 94 N.H. 222, 224, 50 A.2d 227, but merely by trying underall the circumstances to place ourselves in the position of the testator.

We think that even though the words 'living at the decease of my said daughter' are absent after the phrase 'otherwise to their heirs' the situation existing at the time he drew his will indicates an intention on the part of John E. Colony to benefit persons living at the time of distribution. When he drew his will his daughter Julia was 7 years of age, his brother Timothy 59, George 56, Henry 54, and Horatio 42. His brother Alfred had died leaving a widow and three children, 18, 12 and 5 years old. He had eighteen nephews and nieces ranging in age from 5 to 37 years, only two being younger than Julia. All the nephews and nieces who survived him were living when he executed his will and no child was born to any of his brothers thereafter.

If he had intended to limit these remainders to the heirs of...