Gourley v. Greene

• Decision Date: 31 May 1960
• Citation: 161 A.2d 172,102 N.H. 501
• Parties: I. Reed GOURLEY, Trustee, v. Gardner B. GREENE et al.
• Court: New Hampshire Supreme Court

Page 172

161 A.2d 172

102 N.H. 501

I. Reed GOURLEY, Trustee, v. Gardner B. GREENE et al.

Supreme Court of New Hampshire.

Argued May 3, 1960.

Decided May 31, 1960.

Elwin L. Page, Upton, Sanders & Upton, Robert W. Upton, Concord, for Gardner B. Greene.

H. Thornton Lorimer and G. Wells Anderson, Concord, for Marion H. Tuttle.

Frederick S. Hall, Concord, guardian ad litem, furnished no brief.

WHEELER, Justice.

The answers to the questions presented involve the ascertainment of the testatrix' intention deduced from the language of the entire will and in light of all surrounding circumstances. Amskeag Trust Co. v. Haskell, 96 N.H. 89, 70 A.2d 210, 71 A.2d 408; Roberts v. Trustees of Trust Fund for Town of Tamworth, 96 N.H. 223, 225, 73 A.2d 119.

Willard T. Greene, the father of Gardner B. Greene, was the stepson of the testatrix. Gardner claims the corpus of the trust as sole surviving beneficiary and contends that the trust should be terminated and its assets turned over to him. Marion H. Tuttle is a second cousin of Anstis and claims that she will be entitled to the corpus of the trust as sole heir of the testatrix upon the death of the surviving beneficiary, Gardner B. Greene.

Anstis, the testatrix, was the widow of Herman W. Greene, a lawyer. They resided in Hopkinton during his lifetime and Anstis continued to live there after her husband's death in 1896. Her stepson Willard, his wife and three children, also resided there. The children lived 'in intimate and affectionate association with Anstis, whom they regarded as their grandmother, and she looked upon them as grandchildren.' Marion H. Tuttle and her mother were likewise friendly with Ansts and frequently visited with her in Hopkinton, and Anstis, in turn, on her shopping trips to Concord, visited and dined with them.

The will contained no gift over of the corpus of the trust and contained no residuary clause. The residue of the estate amounted to $2,522.79, which was distributed as intestate property to three first cousins, now deceased, one of whom was the mother of the defendant Marion Tuttle. If the testatrix had not struck from her will the thirty-one shares of U. S. Steel, there would have been very little, if any, residue. She was not unfamiliar with the legal significance of a residuary clause, since she acquired the greater part of her estate as residuary legatee under the will of her husband.

The failure to devise a gift over of any remainder, while not conclusive evidence, may, in light of all the surrounding circumstances, indicate an intention on the part of the testatrix to devise the entire interest in property. Ruel v. Hardy, 90 N.H. 240, 6 A.2d 753.

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