Emery v. Haven

• Decision Date: 16 March 1894
• Citation: 35 A. 940,67 N.H. 503
• Parties: EMERY et al. v. HAVEN et al.
• Court: New Hampshire Supreme Court

35 A. 940

67 N.H. 503

EMERY et al.

v. HAVEN et al.

Supreme Court of New Hampshire. Rockingham.

March 16, 1894.

Bill by James W. Emery and William H. Rollius, trustees, against Alfred W. Haven and others.

Alfred W. Haven conveyed certain property to the plaintiffs, upon the following, among other, trusts: If his wife, Margaret, should survive him, "the trustees * * * shall pay to her, during her life, one-third part of the net rent, income, and profits of the said trust fund, and on her death shall convey and distribute one-third share of the capital of said trust fund, as the said Margaret shall by her last will, or by any instrument in the nature of a will, attested by two credible witnesses, direct or appoint, and, in default of such testamentary provision, shall convey and distribute the same to her heirs at law absolutely." Margaret survived Alfred, and died testate, March 4, 1891, leaving two sons and two daughters. Her last will, dated June 16, 1886, contained the following residuary clause: "All the rest, residue, and remainder of my estate and property, of every description, I give, devise, and bequeath to my two daughters, Katherine M. Haven and Ellen B. Haven, in equal shares, and to the survivor of them, and to the heirs and assigns of said survivor, in fee simple." She had property aside from her interest in the trust fund. She made a prior will, dated January 13, 1886, containing substantially the same provisions. The sons, claiming that the power was not executed by the last will, offered to prove that a few days after making the first will the testatrix expressed a fear that her share of the trust fund would pass by the residuary clause to her daughters, and induced them to make an agreement under seal, dated January 27, 1886, as follows: "We, the undersigned, residuary legatees under the will of Margaret H. Haven, dated January 13, 1886, do hereby acknowledge that the intent of the said Margaret in disposing of the residue of her estate as therein mentioned was not to include her share in the capital of the trust fund created by Alfred W. Haven, our father, now deceased, by his deed dated January 9, 1862, but that said share should go to said Margaret's heirs at law, and that said will was not an execution of the power contained in said deed to dispose of said share; and we hereby severally release any and all claim we may severally have under said will to said share of said trust fund to the respective heirs at law, and we severally agree to make no claim upon said Margaret's estate for said share of said capital under said residuary clause in her will, and to claim only our respective rights therein as heirs at law. And we do further severally agree to make and execute any and all papers, receipts, releases, or other documents that may be necessary or proper, or which may hereafter become necessary, in order to effectuate the intention of said Margaret not to dispose of said share by her will." The agreement was delivered to the testatrix, who had control of it until her decease. The daughters claim that the power was executed by the residuary clause of Margaret's last will.

S. W. Emery, for the trustees.

C. E. Batchelder, for the sons. J. S. H. Frink, for the daughters.

CHASE, J. It was held in Kimball v. Society, 65 N. H. 139, 23 Atl. 83-85, that a testator's power to dispose of a remainder expectant upon his life estate is executed by his devise of property described in his will as "my estate," when it appears from competent evidence that he used those words as a description of all the property he had power to dispose of. In the appointor's will there was no mention of the power, nor of the property to which it related, and he had other property upon which the will operated. The ancient common-law rule on the subject (Colt v. Bishop of Coventry, Hob. 140b; Denn v. Roake, 5 Barn. & C. 720) was not followed, although...