Franklin Nat. Bank v. Gerould

• Decision Date: 05 December 1939
• Citation: 10 A.2d 257
• Parties: FRANKLIN NAT. BANK et al. v. GEROULD et al.
• Court: New Hampshire Supreme Court

10 A.2d 257

FRANKLIN NAT. BANK et al.

v. GEROULD et al.

Supreme Court of New Hampshire. Merrimack.

Dec. 5, 1939.

Transferred from Superior Court, Merrimack County; Lorimer, Judge.

Proceeding by the Franklin National Bank and others, executors, opposed by Leonard S. Gerould and others for instructions concerning a will. The question of whether a certain pecuniary legacy lapsed was transferred without ruling.

Case discharged.

Petition, by the executors of a will for instructions.

Item 2 of the will is this: "To my cousin Mary * * * I give Ten Thousand dollars and to my cousin Kate * * * I give Five Hundred Dollars; to my cousin John * * * I give Two Thousand Dollars, and to my cousin Charles * * * I give One Thousand Dollars. The gifts to John * * * and Charles * * * are each upon the condition that the legatees named survive me". By item 3 the testatrix left her tangible personalty to Mary, to go to another cousin if Mary predeceased the testatrix, and to go to Mary's heirs-at-law if both she and the other cousin predeceased the testatrix. The will contains a number of pecuniary bequests to charities, and the residuary estate is left in trust for a Home for aged persons in Franklin.

Mary predeceased the testatrix and left no lineal issue. Charles also predeceased the testatrix and left lineal issue.

The question whether the pecuniary legacy to Mary lapsed has been transferred without ruling.

Demond, Sulloway, Piper & Jones and Benjamin W. Couch, all of Concord, for executors.

Demond, Sulloway, Piper & Jones, of Concord (James B. Godfrey, of Concord, orally) for residuary legatee.

Murchie, Murchie & Blandin, of Concord, Bernard Jacobs, of Lancaster, and Crawford D. Hening, of Berlin, for Mary's heirs-at-law.

PER CURIAM.

The will was evidently prepared with skill by one who was familiar with the principle of lapse of legacies and who more probably than not explained it to the testatrix. In any event, it may not be assumed that she was uninformed and ignorant in regard thereto. It shows no intention that Mary's pecuniary legacy should not lapse if she predeceased the testatrix. On the contrary, an intention that it should lapse is fairly clear, if she should die, as she did, without leaving issue. The fact that John might and Charles did have issue made it necessary to provide for their survivorship of the testatrix in carrying out her purpose that their issue should not take if they did not survive her. But the provision for such...