Edgerly v. Barker

• Decision Date: 31 July 1891
• Citation: 66 N.H. 434,31 A. 900
• Parties: EDGERLY et al. v. BARKER et al.
• Court: New Hampshire Supreme Court

31 A. 900

66 N.H. 434

EDGERLY et al.

v. BARKER et al.

Supreme Court of New Hampshire. Strafford.

July 31, 1891.

Bill of interpleader by James B. Edgerly and others, executors of Hiram Barker, deceased, against Clara Barker and others, to determine the construction of a will.

The following are the material provisions of the will:

"Eighth. I give, bequeath, and devise all the rest, residue, and remainder of my estate, real, personal, or mixed, of every name, nature, and description, and wherever found or situate, to James B. Edgerly and John F. Cloutman, both of said Farmington, Nathaniel Stevens, of Alton, in the county of Belknap, in said state, Henry R. Parker and Reuben G. Hayes, both of Dover, in said county of Strafford, and their successors and their heirs, in trust for the following purposes, to wit: First. To carry on, manage, and improve all my real estate to the best advantage, and take care of my personal estate, and invest the proceeds of all my said estate, with power to sell at private or public sale any of my real estate whenever, in the best judgment of said trustees, it is most expedient and for the interest of my estate so to do, and make the money received from such sale or sales a part of said investment. Secondly. To pay out of and from the net income of my said estate to my daughter, Clara Barker, during her life yearly, the sum of two thousand dollars, in such sums and at such times as she shall request; and, if said sum is not sufficient for her ample and comfortable support and suitable manner of living, such further and additional sums of money shall be paid her by said trustees and their successors as shall, in their best judgment, be just, sufficient, and proper for such purposes. Thirdly. To pay out of and from said net income of my estate to my son, Hiram H. Barker, during his life, yearly, the sum of one thousand dollars, in such manner and at suet times as he shall request, for the proper and reasonable support of himself and his wife and children, if, in the best opinion of said trustees, he shall, from his habits and mode of life, prove himself to be safe and competent to have the use and expenditure of said money for said purposes; and if said sum of one thousand dollars shall not, in the best judgment of said trustees or their successors, prove sufficient for said purposes, then said specified sum shall be increased to such an amount as shall in their best opinion be sufficient for said objects; and said trustees, in case my said son shall prove incapable or unfit from any cause to manage and pay out said money for said purposes, then my said trustees shall manage and expend the same money, and more, if need be, all at their best judgment, and all for said purposes; that, also, out of said income of my said estate, means shall be furnished and provided for the education, at home or abroad, at proper institutions of learning, of each and all of said children; and any other child or children of my said son, if any, hereafter born, shall have and receive all the rights and benefits from my estate that such child or children would have if living at my decease. And I hope that said children, each and all, will avail themselves of this opportunity to acquire a good education. And, if my said son shall become and remain temperate, sober, and correct in his habits for the entire space of five years together, he shall have five thousand dollars, and be added to the number of the trustees, and be of equal power with any other one of them in the control and management of my estate; and he shall be of said trustees, after becoming such as aforesaid, so long as he shall remain temperate, sober, and correct in his habits, and no longer, and ten thousand dollars more shall, at the expiration of ten years from and after the expiration of said five years, he paid him if he shall remain during all said last-named time perfectly temperate, and of good and regular habits, and fifteen thousand dollars more shall be paid to him at the expiration of ten years more after the end of said lastmentioned ten years if he shall remain during all said last-named ten years perfectly temperate and of good and regular habits. Fourthly. To pay out of and from said funds, after the death of my said son, if his wife shall survive him, to her, yearly, money for her sole, proper, and sufficient support and maintenance, not, however, exceeding five hundred dollars, unless more is needed by her, and then such an amount as said trustees shall regard as proper and necessary, all so long as she remains his widow, and no longer. Fifthly. To pay out of and from said estate to each of said children when said child shall reach the age of twenty-one years, and to each of the children of my said daughter if she shall marry and have a child or children, the sum of from three thousand dollars to five thousand dollars, if such child shall then be temperate and of good capacity to manage said money, all in and according to the opinion of my said trustees; and from time to time thereafter, as their wants and necessities shall require, to pay out of and from said estate such further sum or sums of money as may be necessary, all under the conditions aforesaid respecting temperance and capacity; and, when the youngest of said children shall arrive at the age of forty years, then all my estate shall be theirs, to have and to hold the same, to them and their heirs, those of them of good and regular habits, and of capacity to do business and manage property, to take care of and manage as trustees the portion or portions thereof belonging to those, if any, who are not then possessed of such habits and capacity; but, before said property shall vest in and be theirs, proper, suitable, and sufficient bonds or other security must be given by them for the payment of said sum or sums to my said daughter, if living, so long as she shall live, to my said son's widow, if she shall then be living, so long as she lives and remains his widow, and also for the good and sufficient support of my said son so long as he shall live. And, lastly, I hereby constitute and appoint all the said trustees to be also the only executors of this, my last will and testament; and I direct that said executors and trustees and those hereafter appointed under this will shall each be exempt from giving bond, or from giving a surety or sureties on his or their bond; and in case any of said executors or trustees, or both, shall at any time decline to act as such, or die, then application shall be made by him or them who are willing to act or are acting as such to the supreme court in and for said county of Strafford to fill the vacancies so caused."

J. G. Hall, for executors. W. L. Poster and Jeremiah Smith, for trustees.

G. E. Cochrane, Worcester & Gafney, and Frink & Batchelder, for Hiram H. Barker.

DOE, C. J. The construction of the will, Including the question whether the testator intended the remainder, which he devised to his grandchildren, should vest in them before they became entitled to a distribution of it, is determined as a question of fact by competent evidence, and not by rules of law. Rice v. Society, 56 N. H. 191, 197, 198, 203; Brown v. Bartlett, 58 N. H. 511; Kimball v. Lancaster, 60 N. H. 264; Goodale v. Mooney, Id. 528, 534, 535; Sanborn v. Sanborn, 62 N. H. 631, 643; Kennard v. Kennard, 63 N. H. 303, 310; Bodwell v. Nutter, Id. 446, 3 Atl. 421; Kimball v. Society, 65 N. H. 139, 150, 23 Atl. 83-85; Doten v. Do ten, 66 N. H. 331, 333, 20 Atl. 387. "Good and regular habits" are a condition on which he directs that more than one right shall depend. His solicitude on this subject is significant. It is traceable, in the will, to a probable cause, and is the motive of several of his arrangements. The proviso that, when the time arrives for the distribution of the remainder among the grandchildren, "those of them of good and regular habits, and of capacity to do business and manage property," shall "take care of and manage as trustees the portion or portions thereof belonging to those, if any, who are not then possessed of such habits and capacity," is evidence on the question whether he intended the remainder should vest in the grandchildren before the time of distribution. If their interest is vested, they can sell it when they severally come of age. If they can sell it, they can consume the proceeds. He did not intend they should have power to squander it before "those of them of good and regular habits" and competent were authorized to save the portions of the others. When he fixed the day on which "all my estate shall be theirs to have and to hold the same, to them and their heirs," with the proviso for the protection of those "who are not then possessed of" good habits and business capacity, and another proviso that, "before said property shall vest in and be theirs, * * * security must be given by them," he meant that, before it became "theirs," it should not be theirs in a sense that would enable the intemperate, incapable, or Improvident (if such there should be), or any others, to sell or incumber an interest in it.

The trustees contend that, if the remainder does not vest in the grandchildren before the time of distribution, the children of a grandchild who is then dead will take nothing; that their disinheritance was not intended by the testator; and that, consequently, the remainder vests before that time; and this position is sustained by many authorities. Of various words and phrases, there is, in reported cases, a construction that would disinherit the descendants of deceased donees, contrary to the donor's Intent; and the consequence of this error is often avoided by holding that an estate vested in deceased donees, contrary to his intent. When the second error merely corrects the first, the result is the same as if the will were read as he understood it. If a will cannot be conformed to the law unless devised property vests...