Fowler v. Whelan

• Decision Date: 04 December 1928
• Parties: FOWLER v. WHELAN et al.
• Court: New Hampshire Supreme Court

144 A. 63

FOWLER

v. WHELAN et al.

Supreme Court of New Hampshire. Belknap.

Dec. 4, 1928.

Transferred from Superior Court, Belknap County; Young, Judge.

Bill in equity by Frederick W. Fowler, executor under the will of Mary L. O'Shea, against Belle Whelan and another. Transferred without ruling. Case discharged.

Bill in equity, by the executor, for the construction of the will of Mary L. O'Shea, the more material provisions of which are as follows:

"Second

"To my sister, Belle Whelan, of said Laconia, I give and bequeath the sum of Five Thousand Dollars.

"Third

"To my sister, Honoria Daley, of said Laconia, I give and bequeath the sum of Five Thousand Dollars.

"Fourth

"To my brother, John Daley, of Kilmellock, Ireland, I give and bequeath the sum of Five Thousand Dollars, the same, however, to be held in trust, the income therefrom to be paid to my said brother at such times and in such amounts as may, in the judgment of the trustee be deemed for his best interest; and I also authorize the expenditure by said trustee of such portion of the principal fund as may, in the judgment of the trustee, be necessary in providing for the care and comfort of my said brother."

"Eight

"I give and bequeath to my two sisters, Belle Whelan and Honoria Daley, of said Laconia, all of my personal clothing, of every kind whatsoever for such disposition as they may mutually agree upon."

"Tenth

"I give and bequeath to my sisters, Belle Whelan and Honoria Daley, my two dozen solid silver tea spoons and my two solid silver table spoons."

"Twenty-Ninth

"All the rest, residue and remainder of my estate, of every kind and nature whatsoever, I give and bequeath as follows:

"The sum of Five Thousand Dollars, to be held in trust as hereinbefore stipulated, for the benefit of my brother John Daley, and the remainder of said rest and residue equally to my sisters, Belle Whelan and Honoria Daley."

The sister Honoria died without issue October 2, 1926. The testatrix died March 28, 1927, leaving her brother, John, and sister. Belle, as next of kin. Further facts appear in the opinion.

Transferred without a ruling.

Frederick W. Fowler, of Laconia, for plaintiff.

Joseph D. Sullivan, of Portsmouth, Frank N. Parsons, of Franklin, and Wayne M. Plummer, of Laconia, for defendant Whelan.

Jewett & Jewett, of Laconia, for defendant Daley.

SNOW, J. The question presented is whether, Honoria having predeceased the testatrix, Belle as the survivor takes all given by the eighth, tenth, and twenty-ninth clauses of the will, or whether, because of Honoria's death, one-half of the gifts given by these clauses lapses, and, being undisposed of by the will, passes under the statute of distributions to the testatrix's next of kin.

It appears to be mutually conceded that the general rule that a legacy will lapse or be extinguished by the death of a legatee during the lifetime of the testator usually applies where a gross sum is given to several legatees by name, to be equally divided between them, but that such application of the rule must yield to a paramount intention to constitute the named legatees a class, with rights of survivorship, when such intention appears from the whole will, construed in the light of the competent facts. Such are the holdings of this court. Hall v. Smith, 61 N. H. 144, 146; Brewster v. Mack, 69 N. H. 52, 44 A. 811. The reason for the prima facie application of the general principle of lapsing to gifts nominative is that language naming the legatees, when given its ordinary significance, usually imports individual gifts. Jackson v. Roberts, 14 Gray (Mass.) 546, 550, 651.

In each of the three clauses in question, the legatees appear nominatim, the designating and descriptive words being substantially identical, namely, "to my * * * sisters Belle Whelan and Honoria Daley." It follows that the question presented in each instance is whether there is sufficient evidence of an intention that the sisters shall take as a class to overcome the natural and ordinary signification of the language designating the beneficiaries by name. The evidence adduced in support of such an intention varies with each section.

In the eighth clause, the bequest is of the personal clothing of the testatrix "for such disposition as they [the sisters] may mutually agree upon." This language contemplates joint action of the beneficiaries, and it is a fair inference from the language and the subject-matter of the gift that the testatrix intended that, in the case of the predecease of one of the beneficiaries, the other should have the disposition of her personal clothing. Such a power requires joint title. The clause thus contains within itself express evidence that the gift was intended to be to the sisters in joint tenancy—a title which carries the right of survivorship.

In the tenth clause, the gift is of "my two dozen solid silver tea spoons and my two solid silver table spoons." Articles of this class are regarded in the ordinary family as in the nature of family heirlooms, to be handed down from one generation to another. Neither the condition nor the relative values of the fourteen spoons are disclosed, and no method of equal division is provided. In the light of the extrinsic fact that the sisters had, for 35 years, resided together as a single family, and, to the knowledge of the testatrix, expected to continue to do so for the remainder of their joint lives, the subject-matter of the gift warrants an inference that she designed that the spoons should be retained in the family for the joint use of the legatees, and intended to confer upon them a title which would accomplish that purpose. It therefore seems more probable than otherwise that she intended a joint gift by which the spoons would pass to the survivor. This construction, as well as that which we have given the eighth clause, is conceded in argument, and the ground upon which the conclusion in each case has been reached is here set forth only because the interpretation of these clauses is esteemed to be material to the construction of the clause remaining to be considered.

The twenty-ninth clause disposes of the residue of the testatrix's estate as follows:

"The sum of Five Thousand Dollars, to be held in trust as hereinbefore stipulated, for the benefit of my brother, John Daley, and the remainder of said rest and residue equally to my sisters Belle Whelan and Honoria Daley."

The last nine words, if given their ordinary meaning under the general rule as usually applied, denote a gift to the sisters individually of one-half of such remainder to each. Since the executors are directed to reduce all real estate to cash, and the personal estate forming the residue is to be so reduced (P. L., c. 300, §§ 7, 8) or treated as cash, the bequest is of money. There is therefore nothing in the subject-matter of the gift here, as there is in that of the tenth clause, indicative of a purpose to bestow a joint enjoyment of the res. Nor does this clause, like the eighth, contain express internal evidence of an intention to confer a joint title to the property therein bequeathed.

It follows that, if clause 29 were to be construed by itself, we should have to conclude that the testatrix intended that her sisters should take individually and not as a class. But no such narrow rule prevails. "The construction of a will is the ascertainment of the testator's intention, and this is to be gathered, not alone from the words of the particular clause under consideration, but from the language of the will as a whole, read in the light of all the surrounding circumstances." Page v. Eldredge...