Frolich's Estate, In re

Decision Date29 September 1972
Docket NumberNo. 6292,6292
Citation112 N.H. 320,295 A.2d 448
PartiesIn re George C. FROLICH ESTATE.
CourtNew Hampshire Supreme Court

Perkins, Holland, Donovan & Beckett, Exeter (Mr. John W. Perkins, Exeter, orally), for the executrix.

H. Alfred Casassa, Hampton, guardian ad litem, filed no brief.

KENISON, Chief Justice.

Certification of questions of law by the Probate Court of Rockingham County by Treat, J., pursuant to RSA 547:30 requesting instructions concerning the proper amounts and method of distribution under the trust estate of George C. Frolich. This is a proper method for obtaining instructions. In re Peterson Estate, 104 N.H. 508, 190 A.2d 418 (1963); In re Harrington Estate, 97 N.H. 184, 84 A.2d 173 (1951).

The reserved case indicates that the testator died November 20, 1969, leaving a will dated March 23, 1950. The entire estate was devised in trust to the testator's daughter, Georgia M. Kavanagh, as executrix and trustee, with directions to support the testator's wife from the income and necessary principal of the estate for her life, if she survived the testator, with a gift over of the remainder to various legatees. After providing for cash bequests to certain of his grandchildren, the testator directed that his land and buildings at Stinson Lake, New Hampshire, be transferred by proper deed 'free and discharged of all trusts' to Georgia M. Kavanagh. Testator then bequeathed the then remainder of the trust estate in the following shares, provided that the Stinson Lake property was a part of the trust estate which in fact was the case:

To my daughter, Gladys Stormont of Derry, New Hampshire, six twenty-sevenths (6/27)

To my granddaughter, Muriel Apper of Malden, Massachusetts, one twenty-seventh (1/27)

To my daughter, Georgia M. Kavanagh of Needham, Massachusetts, eight twenty-sevenths (8/27)

To my daughter, Marjorie I. Nagel of Malden, Massachusetts, twelve twenty-sevenths (12/27).

The testator was predeceased by his wife and by Gladys Stormont, who left lineal descendants, was survived by Muriel Apper (Chisolm) and Georgia M. Kavanagh, and was predeceased by Marjorie I. Nagel who left no lineal descendants.

The third paragraph of the will provided:

I authorize my Executrix and Trustee, if in her opinion it becomes advisable or necessary to do so, to sell any real or personal property of my estate at public auction or private sale . . . or otherwise dispose of the same without the consent of any court. . . .'

The court transferred without ruling the following questions for instructions:

(a) As to the distribution of the aforesaid twelve twenty-sevenths (12/27) share of the said Marjorie I. Nagel, and

(b) As to the procedure to be used in transferring the premises at Stinson Lake to herself.

Where one of several residuary legatees predeceases the testator, without lineal descendants (RSA 551:12), the orthodox common-law rule of construction in this and other jurisdictions has been that the lapsed residuary share passes by intestacy to the testator's heirs at law rather than being shared by the remaining residuary beneficiaries. Upton v. White, 92 N.H. 221, 29 A.2d 126 (1942); 6 Page, Wills s. 50.18 (Bowe-Parker rev. 1962); Atkinson, Law of Wills s. 140 at 784 (2d ed. 1953). See generally Annot., 36 A.L.R.2d 1117 (1954). The rule dates back at least to Bagwell v. Dry, 1 P. Wms. 700, 24 Eng.Rep. 577 (Ch.1721), beginning as a rule of law applicable regardless of the testator's intent (Humble v. Shore, 7 Hare 247, 68 Eng.Rep. 101 (Ch.1847); see 2 Jarman, Wills 1016-20 (7th ed. 1930)), and finally evolving into a rule of construction to be utilized in the absence of some expression of intent in the will. Note, 36 Harv.L.Rev. 230 (1922).

The reasons underlying the rule are said to be that there can be no 'residue of a residue' since the residuary clause cannot 'catch' property itself a part of the residue (Atkinson, Law of Wills s. 140, at 784 (2d ed. 1953)), and that to augment the shares of the remaining residuary legatees would be to frustrate the intent of most testators who intend that the residual beneficiaries shall receive only the specific portions bequeathed to them and no more. E.g., Gray's Estate, 147 Pa. 67, 23 A. 205 (1892); Note, 55 Mich.L.Rev. 1202 (1957). The 'residue of a residue' reason has been attacked as merely a 'play upon words' lacking any substantive value (Corbett v. Skaggs, 111 Kan. 380, 207 P. 819 (1922)) as has the theory of the testator's 'intent' since at the time of the will's execution the residue is of an unascertainable amount. Wright v. Wright, 225 N.Y. 329, 340-341, 122 N.E. 213, 217 (1919); Legislation, 26 Ford.L.Rev. 372 (1957). The original true reason behind the rule has been said to rest upon an attempt by the tradition-oriented English courts to keep the devolution of property in the 'regular' channels; that is, to facilitate its passing to the heirs and next of kin. Note, 9 N.Y.U.Intra.L.Rev. 262 (1954).

The traditional rule passing a lapsed residual share by intestacy has been strongly criticized for many years by courts and commentators alike. 5 Am.Law of Real Prop. s. 22.6 at 258 (A. J. Casner ed. 1952); Legislation, 26 Ford.L.Rev. 372, 377-80 (1957); Note, 10 N.Y.U.L.Q.Rev. 97 (1932); Note, 36 Harv.L.Rev. 230 (1922); Note, 31 Yale L.J. 782 (1922); Gray's Estate supra; Corbett v. Skaggs supra; Commerce Nat'l Bank v. Browning, 158 Ohio St. 54, 107 N.E.2d 120 (1952). This technical rule has evoked considerable dissatisfaction and has been reluctantly enforced by the courts generating a confusing and contradictory body of cases. Industrial Nat'l Bank v. Glocester Manton Free Publ. Library, 107 R.I. 161, 265 A.2d 724 (1970); Legislation, 26 Ford.L.Rev. 372, 377-79 (1957). See generally Annot., 36 A.L.R.2d 1117 (1954). The most cogent criticism of the rule is that it very probably defeats the testator's general testamentary intent in most cases. In re Dunster, (1909) 1 Ch. 103; Halbach, Stare Decisis and Rules of Construction in Wills and Trusts, 52 Calif.L.Rev. 921, 940 (1964); Atkinson, Law of Wills s. 140, at 185 (2d ed. 1953); 4 Page, Wills s. 33.56, at 390-91 (Bowe-Parker rev. 1961); Note, 34 Va.L.Rev. 722 (1948).

Even those courts which have retained the old rule on grounds of stare decisis have strained to the utmost to find the slightest evidence of a contrary intent in order to avoid the rule. 6 Page, Wills s. 50.18, at 99 (Bowe-Parker rev. 1962); 2 Jarman, Wills 1016-20 (7th ed. 1930); 9 N.Y.U.Intra.L.Rev. 262, 267 (1954). See also Roberts v. Trustees of Trust Fund for Town of Tamworth, 96 N.H. 223, 73 A.2d 119 (1950); Fowler v. Whelan, 83 N.H. 453, 144 A. 63 (1928). Where a resort to constructional fiction is frequent because a rule is unsound, as is the case with the traditional rule here involved, a change in the rule is clearly indicated. Halbach supra. And in such a case the objectives of stare decisis are actually promoted rather than undermined by a change in the rule. Id. The recent judicial trend has been to discard the traditional rule and allow the surviving residual legatees to share the lapsed portion of the residue. . e.g., In re Estate of Jackson, 106 Ariz. 82, 471 P.2d 278 (1970); In re Slack Trust, 126 Vt. 37, 220 A.2d 472 (1966); see Note, 55 Mich.L.Rev. 1202 (1957). The old rule has been abrogated by statute in at least six states. Industrial Bank v. Glocester Manton Free Pub. Library, 107 R.I. 161, 170, 265 A.2d 724, 729 (1970). The Uniform Probate Code s. 2-606(b) rejected the traditional rule in favor of passage of lapsed residuary legacies to the other residuary legatees. O'Connell and Effland, Interstate Succession and Wills: A Comparative Analysis of the Law of Arizona and the Uniform Probate Code, 14 Ariz.L.Rev. 205, 251 (1972).

The cardinal rule of will construction in this jurisdiction has always been to effectuate the testator's intent if at all possible. See In re Estate of Griffin, 110 N.H. 400, 269 A.2d 126 (1970); Fogg v. Clark, 1 N.H. 163 (1818). We have held a will may indicate as a whole the testator's intent to treat a group of named residuary legatees as members of a class so as to allow a lapsed portion to remain in the residue to be divided by the survivors. Roberts v. Trustees of Trust Fund for Town of Tamworth supra; Hoyt, Probate Practise 80 (1901); 3 Treat, Probate Law s. 1088 (1968). However, where there has been no discernible evidence of some expression of 'group-mindedness' by the testator, we have in the past followed the traditional rule passing lapsed portions of the residue to the heirs. Upton v. White supra. Precedents, however, should not ordinarily hinder the abolition of unsound rules of construction. Halbach supra.

The mere execution of a will indicates that the testator intended to die testate and, in the absence of 'evidence of a purpose of intestacy', there is a presumption that a testator intended his entire estate to pass under his will. E.g., Kemp v. Dowling, 94 N.H. 198, 200, 49 A.2d 924, 925 (1946). Further, a residuary clause by its very nature disposes of all of the estate not otherwise devolved and strengthens the presumption that the testator intended his entire estate to pass by his will. Cotter v. Cotter, 103 N.H. 551, 176 A.2d 316 (1961); Merchants Nat. Bank of Manchester v. Berry, 93 N.H. 388, 42 A.2d 693 (1945); Fowler v. Whelan supra; 4 Page, Wills s. 30.14 (Bowe-Parker rev. 1961). Ordinarily a testator will include his most favored legatees in the residual bequest intending that they shall take the bulk of his estate to the exclusion of any unnamed heirs. Thus, the traditional rule of construction, in passing lapsed portions of the residue as intestate property, vitiates the ordinary testator's intent, or what he probably would have intended had he thought about the problem.

Arbitrary canons of construction always give way in this jurisdiction to a single broad rule of construction favoring the 'maximum validity of the testator's dispositive plan.'...

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12 cases
  • Sargent v. Ross
    • United States
    • New Hampshire Supreme Court
    • July 31, 1973
    ...made from the previous holding in such a situation.' Dean v. Smith, 106 N.H. 314, 318, 211 A.2d 410, 413 (1965); See In re Frolich Estate, 112 N.H. 320, 295 A.2d 448 (1972). Our decision will shift the primary focus of inquiry for judge and jury from the traditional question of 'who had con......
  • In re Estate of McFarland
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    • July 7, 2005
    ...succession to the testator's heirs at law. See, e.g., Corbett v. Skaggs, 111 Kan. 380, 207 P. 819, 820 (1922); In re Frolich's Estate, 112 N.H. 320, 295 A.2d 448, 450 (1972). This rule has, in fact, been the law in Tennessee for the past 153 years, having been adopted in Ford v. Ford, 31 Te......
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    ...but see 1 Restatement (Third), supra, § 5.5, comment (o), p. 389 (rejecting "noresidue-of-a-residue" rule); In re Frolich's Estate, 112 N.H. 320, 326, 295 A.2d 448 (1972) (adopting rule that failure of portion of residue results in division of such portion among remaining residuary legatees......
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2 books & journal articles
  • When Beneficiaries Predecease: an Empirical Analysis
    • United States
    • Emory University School of Law Emory Law Journal No. 72-2, 2022
    • Invalid date
    ...as the residuary clause" as sufficient to override the rule. Id. (internal quotation marks omitted); see also In re Frolich Estate, 295 A.2d 448, 451 (N.H. 1972) ("[C]ourts . . . have strained to the utmost to find the slightest evidence of a contrary intent in order to avoid the rule.").74......
  • The Influence of the Uniform Probate Code in Nonadopting States
    • United States
    • Seattle University School of Law Seattle University Law Review No. 8-03, March 1985
    • Invalid date
    ...Civ. App. 1974). UPC § 2-606(b) as cited in In re Estate of Leavy, 122 N.H. 184, 185-86, 442 A.2d 588, 589 (1982); In re Frolich Estate, 112 N.H. 320, 326, 295 A.2d 448, 452 (1972). UPC § 2-608 as cited in Graham v. Home State Bank, 216 Kan. 770, 775, 533 P.2d 1318, 1322 (1975). UPC § 2-610......

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