Davis' Estate, In re

• Decision Date: 23 May 1967
• Docket Number: No. 5600,5600
• Citation: 229 A.2d 694,108 N.H. 163
• Parties: In re Freeman N. DAVIS' ESTATE.
• Court: New Hampshire Supreme Court

Page 694

229 A.2d 694

108 N.H. 163

In re Freeman N. DAVIS' ESTATE.

No. 5600.

Supreme Court of New Hampshire.

Argued April 3, 1967.

Decided May 23, 1967.

SYLLABUS BY THE COURT

1. Ordinarily the heir of a decedent is he upon whom the law of inheritance casts the estate immediately on the death of the ancestor.

2. However where a testator survived by a widow and three nieces left by will a portion of a remainder after the death of his widow to two of his nieces outright and in trust for the third niece, the income to be paid to her during her lifetime, and provided that the trust should terminate at her decease and "at that time" bequeathed the trust property "to my heirs at law" the testator was held to have intended that the legatees constituting his heirs at law should be determined as of the death of the life beneficiary niece.

Certification of a question of law by the judge of probate for Strafford county (William E. Galanes). Freeman N. Davis, late of Dover, died testate on June 5, 1934. By his will, the residue of his estate was bequeathed and devised in trust for his widow for life. The will further provided that upon her decease, certain trusts should be established and legacies paid, and that the remainder should be divided in specified proportions among two nieces, a foster daughter, Mabel D. Woodward, and a trust for the benefit of a third niece, Maude E. Davis. Strafford National Bank, trustee of the latter trust, petitioned the probate court for an order of distribution upon allowance of its final account; and that court thereafter certified to this court the following question: 'Whether distribution under paragraph 6(g)(3) of said Will is to be made to the heirs at law of said freeman N. Davis who qualify as such as of the date of his death, or who qualify as such as of the date of death of Maude E. (Davis) Cox.'

Calderwood, Silverman & Ouellette, Raymond R. Ouellette, Dover, for trustee, as amicus curiae.

Burns, Bryant, Hinchey & Nadeau, and Paul R. Cox, Dover, for Edna D. McIver.

Frank W. Peyser, Rochester, guardian ad litem, filed no brief.

DUNCAN, Justice.

By his last will, dated December 24, 1931, the testator bequeathed and devised to his widow certain real and personal property of substantial value. After two other bequests, the residue of his estate was bequeathed and devised 'for and during the lifetime' of his widow in trust for her benefit.

The will provided that upon the death of the widow, pecuniary legacies aggregating $2,800 two of them contingent upon survival, should be paid to specified legatees. It also established a trust in the principal sum of $12,000 for the benefit of four children, by name, of the testator's niece, Bertha D. Bone, the share of each to be held until he or she should reach the age of twenty-eight years, a similar trust in the principal amount of $9,000 for the benefit of three named children of Leo H. McIver (and of the testator's niece Edna D. McIver), and a third trust in the amount of $6,000 for the benefit of two children therein named of Mabel D. Woodward, the testator's foster daughter.

The balance of the residue was bequeathed and devised outright, four-fifteenths to each of the testator's nieces, Edna D. McIver and Bertha D. Bone, with a proviso that if either predeceased the testator's widow without lineal descendants her share should go to the other; and three-fifteenths to Mabel D. Woodward, with a like proviso in favor of Edna and Bertha if Mabel should predecease the widow without lineal descendants. The remaining four-fifteenths was disposed of as follows: '(3). Four fifteenths thereof to Dwight Hall, in trust, for the benefit of my niece Maude E. Davis, child of my brother Ansel T. Davis, and I direct my said trustee to pay the income of said trust fund to the said Maude E. Davis quarterly during her lifetime. At the death of the said Maude E. Davis, this trust shall come to an end and at that time I give, bequeath and devise said trust property, together with the accumulations thereon to my heirs at law in the same proportion that they would inherit from an intestate ancestor.'

Certain facts are established by agreement of the parties. The legatee Maude E. Davis (Cox) died at the age of 78 on August 8, 1964, without issue, having survived the testator by thirty years. 'Testator's heirs at law as of the date of his death were his nieces, Maude E. Davis (Cox), Bertha D. Bone, and Edna D. McIver. Testator's heirs at law as of the date of death of the life beneficiary (Maude E. Davis (Cox)) are the niece Edna D. McIver, and the four children of Bertha D. Bone, who died November 9, 1953.' When the will was executed in 1931 the testator's wife was 73, and seven years his junior, and his nieces and foster daughter were all...