Gafney v. Kenison

• Decision Date: 15 July 1887
• Citation: 10 A. 706,64 N.H. 354
• Parties: GAFNEY, Ex'r, v. KENISON and others.
• Court: New Hampshire Supreme Court

10 A. 706

64 N.H. 354

GAFNEY, Ex'r,

v. KENISON and others.¹

Supreme Court of New Hampshire. Carroll.

July 15, 1887.

Reserved case from Carroll county; Smith, Judge, presiding.

Bill in equity for the construction of a will. Section 10 of the will is as follows: "I give and devise to my beloved brother, William Thurston, the sole use of the farm he now occupies, for the term of his natural life, and after his decease to his son, Josiah W. Thurston, during the term of his natural life, and after his decease I give and devise the same to his eldest child. * * *" William Thurston died in 1885, before the death of the testator. His son, Josiah W., is living, and has children; the oldest being William M. Thurston. William Thurston lived on a farm in Effingham, from 1848 to the time of his death, which was owned by the testator since 1867. It consisted of two tracts of land about one mile apart. In 1860, William Thurston also cleared up some meadow land owned by the testator, situated about two miles from the place where he lived. He and Josiah W. occupied the meadow land as a part of the farm, and the three pieces of land were known as his farm at the date of the will.

Did the testator simply devise the original William Thurston farm, or did he devise the land occupied with it, to-wit, the meadow land? Does the estate go to William M., the oldest child living at the testator's death, or to the oldest child living at the death of Josiah W.? Section 15 of the will directed the executors to invest in some bank "an ample sum of money, the income of which sum always to be sufficient to keep" his burial lot in good condition, and to enlarge it, if necessary. What is meant by "an ample sum of money?" Sections 18 and 19 are as follows: "Sec. 18. I hereby authorize my executors to dispose of any of the real estate of which I may die seized, at private or public sale, without license from probate court, as may seem to them most advantageous, and for the best interest of my estate, for the purpose of paying any or all of the foregoing legacies. Sec. 19. As to all the rest and residue of my estate, * * * it is my will that the same be sold by my executors as above provided, and the proceeds safely invested, and the interest of the same be applied by my executors, for the term of ten years, for the relief of the most destitute of my relatives, not to extend beyond the children of my brothers and sisters and their families. After which time the principal to be equally divided between them, including the children of Nathaniel H. Thurston, deceased, and the children of Sarah A. Towle." Can the property be sold without license from the probate court? And in section 19 what is meant by the words "as above provided?" What is meant by "the most destitute of my relatives," and by the words "their families?" By a codicil it is provided that the legacies may be set off to the legatees in real estate instead of money, at the discretion of the executors, "within three years after my decease; said set-off to be made by three experienced and disinterested persons." How are these men to be appointed?

Worcester & Gafney and A. L. Foote, for plaintiff. E. A. & C. B. Hibbard, D. R. Hastings, and F. Weeks, for defendants.

BLODGETT, J. 1. The devise of the William Thurston farm includes the meadow land. It was generally known as a part of the farm when the will was executed, and the fair presumption is that the testator so regarded it. Moreover, if there is any doubt on this point, the donees are entitled to the benefit of it. Parsons v. Winslow, 6 Mass. 173.

2. The question in whom the title of the farm will vest upon the decease of Josiah W. obviously does not concern the executor, and therefore is not properly before the court, and cannot be considered. Hodgdon v. Barling, 61 N. H. 582. The object of a bill of this kind is to instruct the trustee in his duties for his protection. Greeley v. Nashua, 62 N. H.—.

3. The executor has authority to complete the burial lot. Bell v. Briggs, 63 N. H. 592, 4 Atl. Rep. 702. By "an ample sum of money" the testator meant a sum large enough so that the income of it would forever be sufficient to keep his lot in repair, and enlarge it, if necessary. The language used is sufficient for these purposes, and the sum of money to be invested is reasonably capable of ascertainment. The amount to be invested may be determined at the trial term. Limiting the answer to the question of the sufficiency of the language to warrant the investment, as we do, it is unnecessary to go further.

4. Section 18 of the will empowers the executor to sell so much of the testator's real estate at public or private sale, without license from the probate court, as lie may deem advantageous, and for the best interests of the estate,...