Falconer's Estate, In re

• Decision Date: 30 June 1969
• Docket Number: No. 5874,5874
• Citation: 254 A.2d 827,109 N.H. 460
• Parties: In re Cora P. FALCONER'S ESTATE.
• Court: New Hampshire Supreme Court

Page 827

254 A.2d 827

109 N.H. 460

In re Cora P. FALCONER'S ESTATE.

No. 5874.

Supreme Court of New Hampshire.

Argued Jan. 7, 1969.

Decided June 30, 1969.

Sheehan, Phinney, Bass & Green and Alan L. Reische, Manchester, for Clayton W. Priest.

Calderwood, Silverman & Ouellette and Laurence E. Kelly, Dover (Reymond R. Ouellette, Dover, orally), for Dorothy A. Falconer.

Wadleigh, Langdell, Starr, Peters & Dunn, Manchester (Theodore Wadleigh, Manchester, orally), for estate of William Falconer.

KENISON, Chief Justice.

The primary question in this case is whether gifts to be paid from the residue of an estate to nephews of the testatrix' husband, at the latter's decease, lapse because the nephews predeceased the husband, although they survived the testatrix. Although the briefs of counsel speak in terms of the nephews' interest as being vested on the one hand or contingent on the other hand, they all recognize that the pivotal question is whether the will contains a requirement of survival of the husband. 'Judicial opinions in this field are full of discussion as to whether the interest in litigation is 'vested' or 'contingent', but, after having labored for the answer to that question, if they have concluded that it is 'vested', it is then necessary for them to face and to decide whether this 'vested' interest is or is not defeasible by nonsurvival. Words and mental energy would have been saved and the clarity of the law would have been enhanced by an immediate consideration of the commonly decisive question, namely, the presence or absence of a requirement of survival.' 2 Powell, Real Property, s. 326, n. 2 (1967).

Upon an agreed statement of facts, the Rockingham Probate Court (Treat, J.) certified questions of law concerning the construction of the will, the answers to which were 'prerequisities to (the Probate Court) passing upon a final accounting and making a decree of distribution * * *.' RSA 547:30; In re Harrington Estate, 97 N.H. 184, 84 A.2d 173; In re Grondin Estate, 98 N.H. 313, 315, 100 A.2d 160; In re Peterson Estate, 104 N.H. 508, 509-510, 190 A.2d 418.

Cora P. Falconer died testate June 29, 1963. Her will, executed in 1958 and a codicil dated February 20, 1963, placed her entire estate in trust with the net income payable to her husband during his life, and discretion in the trustee to invade the principal if required for his comfortable support and enjoyment. The will provided that at the decease of the husband numerous bequests should be paid to nephews and nieces of the testatrix and her husband. The husband died on March 7, 1966. The two clauses of her will which are involved in this case are 3(o) and 3(v) which read as follows:

'3. At the decease of my said husband * * *'

'(o) I give and bequeath to my husband's said nephews, William Falconer and Charles M. Falconer, the sum of SEVENTY-FIVE HUNDRED ($7,500) DOLLARS each.

'(v) Of all the rest, residue and remainder of my estate, I give, devise and bequeath one-third (1/3) thereof to William Falconer, of Waban, Massachusetts; one-third (1/3) thereof to Charles M. Falconer, of Concord, New Hampshire and one-third (1/3) thereof to may nephew, Clayton Priest, of Manchester, New Hampshire.'

Both the husband's nephews survived the testatrix but predeceased her husband. Charles M. Falconer died testate October 2, 1963 and William Falconer died testate on December 3, 1964.

It is undisputed that neither the pecuniary bequests to the husband's nephews (clause 3(o)) nor the residuary bequests (clause 3(v)) contained any express requirement of survival. We proceed to consider whether a requirement of survival is to be implied from the language of the bequests themselves or from the dispositive plan of the testatrix as a whole. 'If the beneficiary has survived the effective date of the dispositive instrument, however, it is generally recognized that no further requirement of survival exists merely because full beneficial enjoyment is postponed until some subsequent date.' 5 American Law of Property, s. 21.10, p. 142 (1952). Our decisions have recognized and applied this principle in many contested cases construing wills. Colony v. Colony, 98 N.H. 386, 390, 89 A.2d 909; Abbott v. Lewis, 77 N.H. 94, 97, 88 A. 98; Osgood v. Vivada, 94 N.H. 222, 225, 50 A.2d 227; Upton v. White, 92 N.H. 221, 226, 29 A.2d 126; Kennard v. Kennard, 63 N.H. 303, 309. The language of both clauses 3(o) and 3(v) identifies the nephews as existing persons and the bequests are couched in language of a present gift. Cf. In re Davis Estate, 108 N.H. 163, 229 A.2d 694. These are factors which tend to establish the absence of a condition precedent of survival on their part and militate against construing the gifts as requiring an implied condition of survivorship. Restatement, Property, ss. 256, 257; 1 Casner, Estate Planning, 548 (3rd ed. 1961); Holyoke National Bank v. Kane, 348 Mass. 786, 204 N.E.2d 500. A requirement of survival is not to be implied in the absence of language or a dispositive plan indicating a purpose to impose such a condition. Benton v. Benton, 66 N.H. 169, 170, 20 A. 365; Abbott v. Lewis, supra, 98, 88 A. 98; Colony v. Colony, supra.

In the codicil to her will the testatrix revoked a pecuniary bequest (clause 3(m)) to one of her nephews, 'as Elma Whittier is now deceased.' It is the...