Heffenger v. Heffenger

• Decision Date: 06 December 1938
• Citation: 3 A.2d 95
• Parties: HEFFENGER v. HEFFENGER et al.
• Court: New Hampshire Supreme Court

3 A.2d 95

HEFFENGER

v. HEFFENGER et al.

Supreme Court of New Hampshire, Rockingham.

Dec. 6, 1938.

Transferred from Superior Court, Rockingham County; Connor, Judge.

Proceeding on the petition of Charles P. Heffenger, administrator with the will annexed de bonis non of the estate of Mary Stearns Heffenger, against Charles P. Heffenger and others, executors, for instructions, which was submitted on an agreed statement of facts and transferred to the Supreme Court without a ruling by the trial judge.

Case discharged.

Petition, for instructions by the administrator with the will annexed de bonis non of the estate of Mary Stearns Heffenger. Facts agreed.

Mary P. Pickering died in 1901, leaving a will wherein she gave her property to a trustee to be held for the benefit of her daughter, Fannie C. Heffenger, for life. Following this life estate the will provides for the equal distribution of the property in fee among the life tenant's children.

Mary Stearns Heffenger, the testatrix here, was one of those children. She died before her mother and the question presented is whether in her will she disposed of her interest in remainder or whether as to it she died intestate. The will, which is wholly in the testatrix' own handwriting and shows signs of having been drawn without legal assistance, begins with a bequest of the property which the testatrix inherited from her father. It then continues as follows: "I wish Augustus Peirce to have any scientific books he may find in my library, the rest to be divided between my sisters and brother, or, in case of any deaths, of the heirs of the deceased." It then goes on to make disposition of jewelry, clothing, furniture and pictures and concludes without any residuary clause.

The question of the interpretation of this will was transferred without a ruling by Connor, J.

Edgar A. Blanchard, of Portsmouth, for plaintiff.

Charles P. Heffenger, pro se.

WOODBURY, Justice.

The testatrix could have disposed by will of the interest which she had in the estate of her grandmother (Flanders v. Parker, 80 N.H. 566, 568, 569, 120 A. 558, and cases cited), but in our opinion she failed to do so. We base this conclusion upon a consideration of the will and the competent evidence of the circumstances under which it was drawn. It appears in the agreed statement of facts that the testatrix knew of the existence of the remainder interest created by the will of her grandmother and it also there appears that she knew of her participation in that interest. Yet, with these facts in mind, she failed to make any mention of that interest in her will and failed to insert therein any clause disposing of the residue of her estate. These considerations, viewed in the light of the detailed provisions which she saw fit to make with reference to the disposition in her will of the other classes of property which she owned, point to the conclusion that the testatrix failed to mention her interest in remainder or other residuary...