Cowan v. Cowan, 3076.

• Decision Date: 02 May 1939
• Docket Number: No. 3076.,3076.
• Citation: 6 A.2d 179
• Parties: COWAN et al. v. COWAN et al.
• Court: New Hampshire Supreme Court

6 A.2d 179

COWAN et al.

v. COWAN et al.

No. 3076.

Supreme Court of New Hampshire. Strafford County.

May 2, 1939.

Transferred from Superior Court, Strafford County; Lorimer, Judge.

Petition by Marion B. Cowan and another, executors, against James W. Cowan and others, for construction of a will. Questions raised were transferred without ruling.

Case discharged.

Petition, for construction of a will, by its executors. The testator left a widow, aged 65, but no issue. In its material provisions, the will provides for all of the testator's heirs at law by giving to a nephew a watch and personal ornaments, to a sister $250, and to his other sister "$1.00 as she is well fixed herself". Certain clauses are as follows:

"4. To my wife * * * I leave to her as long as she lives my house [homestead] * * * and contents of all kinds.

"5. On her death, it is to be sold and proceeds turned over to the Trustees of my Estate.

"6. All Real Estate I may hold at time of my death, except [the homestead] * * *, is to be sold and proceeds turned over to the Trustees.

"7. To my wife * * * the Trustees are to turn over to her all income from the Trust every 6 months."

"10. On the death of my wife * * *, the Interest of the trust fund is to be paid to the Christian Church * * * in memory of my wives.

"11. Should the Christian Church cease to exist, the trust fund is to be turned over to the Shriner Hospital for Crippled Children."

The will names the State Street Trust Company of Boston "Trustees", and the two executors "Administrators of the estate". Except as appears by the quoted clauses, the will makes no disposal of the residuary estate.

The homestead was appraised for $4,000, its furnishings for about $500, an automobile and stable tools for about $500, other real estate for $3,200, other tangible personalty for about $275, cash of about $750, and intangible personalty at about $29,000, making a total estate of over $38,000. Other facts appear in the opinion.

The Court (Lorimer, J.) has transferred without ruling the questions (1) whether by clause 4 of the will the automobile and stable tools are bequeathed, and (2) whether the will disposes of the testator's residuary estate, with incidental questions depending thereon.

Cooper & Hall, of Rochester, for plaintiffs.

Snow & Peyser, of Rochester (Frank W. Peyser, of Rochester, orally), for certain heirs at law.

Cheney, Nighswander & Lord, of Laconia (Arthur H. Nighswander, of Laconia, orally), for Christian Church of Wolfeboro.

ALLEN, Chief Justice.

I. The automobile and tools were kept in a stable, which was a building on the testator's homestead. The "house" devised to the testator's widow for life is clearly to be read as inclusive of the land and buildings comprising the homestead, and these articles were therefore a part of "the contents of all kinds" bequeathed with the devise of the life estate. The first question is answered in the affirmative.

II. The will places certain property in trust, with full beneficial disposal of it. The property is described in Clause 5 of the will as "my Estate", and the issue of construction is whether the property consists of the entire residuary estate or only of the testator's real estate with the trust of the homestead being deferred until the death of his widow before it was to become operative.

In a style terse and concise and drawn without the aid of expert skill, the will exhibits a comprehensive plan for the disposal of the entire estate. While it contains no specific and separate residuary clause, the "estate" placed in trust is construed to mean all of it constituting the residue. The case is not one of omission through inadvertence or intention to make a disposal of the residue, but is one of an executed intention thus to dispose of it. If in place of the language used the will read: "Subject to the other provisions hereof, I give my estate in trust", with a naming of the trustee and the provisions for the beneficiary interests, it would clearly be a disposal of all the residue. The language employed is an equivalent therefor, without great resort to the presumption against partial intestacy. Conceding that a purpose of partial intestacy may be translated into a purpose that the residuary personalty should be distributed according to intestate inheritance, it is not a purpose expressed by the will. The will's silent omission may disclose the purpose, but the omission, and not the will, announces it. It is not as though the will contained a clause providing that the residuary personalty should be distributed as it would be without the clause. Such a clause would establish full testacy, but its omission does not indicate that full testacy is not otherwise established. The indication is of full testacy, so far as the presumption against partial intestacy may be logically employed as an instrument of construction.

Various features and aspects of the will combine to confirm this view of full testacy. No purpose is shown that the testator's heirs at law were to...