Gale v. Gale

• Decision Date: 02 February 1932
• Citation: 159 A. 122
• Parties: GALE v. GALE et al.
• Court: New Hampshire Supreme Court

159 A. 122

GALE

v. GALE et al.

Supreme Court of New Hampshire. Cheshire.

Feb. 2, 1932.

Transferred from Superior Court, Cheshire County; Matthews, Judge.

Petition by Horace B. Gale, trustee, against Eleanor E. Gale and others, in which questions were transferred without ruling.

Case discharged.

Petition for instructions by the trustee under the will of Mary A. Ball. The testatrix created a trust providing for the payment of income to her children for life, as follows: "After the death of my last child, I give, devise and bequeath to my grandchildren then living the use and income of said block to be divided among them and kept as in the case of my said children, and after their decease it is my will that said property be kept for their descendants and treated in the same way as in the case of my children and grandchildren as long as the same can be legally done."

Three children and two grandchildren survived the testatrix. The children have since died. They had no other children. There is one greatgrandchild, Katherine A. Bigelow, born since the death of the testatrix.

One of the grandchildren claims that the trust period has terminated, and that distribution of the principal should be made.

The trustee alleges that he is advised that, they are entitled to such distribution, and "that because of the conditions above described he believes it is for the best interests of the property that the trust be terminated and the property turned over to the heirs, if the same may be legally done."

The following questions were transferred without ruling by Matthews, J.:

(1) Is the trust terminated under the terms and conditions of the will, and are Eleanor Eastman Gale and Mary B. Bigelow entitled to have one-half of the principal of said trust fund paid to each of them free of trust at this time?

(2) What is the interest of Katherine A. Bigelow in this trust fund?

(3) What other interests, if any, are there in the income of principal of the trust fund?

Horace B. Gale, pro se.

Roy M. Pickard, of Keene, for Eleanor E. Gale.

Philip H. Faulkner and Ernest L. Bell, Jr., both of Keene, for Mary B. and Katherine A. Bigelow.

PEASLEE, C. J.

The legal intent of the testatrix, as expressed in the language of the will, is to be carried out. Otherwise expressed, it is her will. Edgerly v. Barker, 66 N. H. 434, 31 A. 900, 28 L. R. A. 328. Being in apparent doubt as to how far the law permits the limitation of estates, she did not undertake to express that feature of her act in concrete terms. Instead thereof she provided that the trust "she created was to continue for the benefit of her descendants "as long as the same can be legally done."

In Edgerly v. Barker, supra, where the testator had placed limitations on the trust estate slightly in excess of those permitted by law, and it appeared that there was a primary intent that the devise take effect, even though the precise limitation stated could not, it was held that there was a good limitation of so much of restriction as the law permits. This doctrine was approved in Wentworth v. Wentworth, 77 N. H. 400, 92 A. 733, and Flanders v. Parker, 80 N. H. 566, 120 A. 558. The Barker Case is decisive of the present controversy. In the former case, the intent to fix the limitation allowed by law was implied. There is no such issue here, for that intent is expressed. As it could be given effect there, when found by implication, it is evident that it is effective here, when stated in terms.

The law permitted her to limit the estate for lives in being at the time the estate was created; that is, at her death. McAllister v. Elliot, 83 N. H. 225,140 A. 708. Whether such limitation could be upon all the lives then in being, whether it should be restricted to those whose duration could be reasonably ascertained, or whether it could be limited at all by lives of those not interested in the estate, are questions upon which there is difference of opinion and which are not settled in this jurisdiction. Edgerly v. Barker, supra; Rolfe & Rumford Asylum v. Lefebre, 69 N. H. 238, 45 A. 1087.

It is not necessary to consider them here. The provisions for the devolution of the property at the death of one and another of the testatrix' descendants demonstrates that she had no other lives in mind as the measure of what she gave. If she could have made liny such widely measured limitation she did not intend to do so.

Adding to the words of her will the rule of law...