Hills v. D'amours

• Decision Date: 17 June 1948
• Citation: 59 A.2d 551
• Parties: HILLS et al. v. D'AMOURS, Atty. Gen. D'AMOURS, Atty. Gen. v. HILLS et al.
• Court: New Hampshire Supreme Court

59 A.2d 551

HILLS et al.

v.D'AMOURS, Atty. Gen. D'AMOURS, Atty. Gen. v. HILLS et al.

Supreme Court of New Hampshire.

May 18, 1948.

Rehearing Denied June 17, 1948.

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Transferred from Superior Court, Hillsborough County; Goodnow, Judge.

Petition by one Hills and others, trustees, under the will of Alfred K. Hills, deceased, and under the will of Mary F. Creutzborg, deceased, against Ernest R. D'Amours, Attorney General, and Dora Ashmead Dunn and Sydney Dunn, for instructions and advice, and bill in equity by Ernest R. D'Amours, Attorney General, against one Hills and others, trustees, under the will of Alfred K. Hills, deceased, and the will of Mary F. Creutzborg, deceased, to compel the trustees under the will of Alfred K. Hills, deceased, to execute certain charitable provisions of the will of Alfred K. Hills, deceased. Exceptions of all parties are reserved and transferred by the Presiding Justice.

Case discharged.

Petition by trustees under the will of Alfred K. Hills, late of Hudson, deceased, and trustees under the will of Mary F. Creutzborg, late of said Hudson, deceased, for instructions and advice. Bill in equity by the Attorney General to compel the first mentioned trustees to execute certain charitable provisions of the Hills will. Dora Ashmead Dunn and Sydney Dunn, contingent beneficiaries under the Creutzborg will, and the Attorney General are parties defendant to the trustees' petition. By amended answer the Dunns seek a decree establishing their right to one half of the residue of the Creutzborg estate. Because of its interest in the proceedings, the town of Hudson was permitted to participate in the hearings, although its motion to appear as a party was denied subject to exception. The two proceedings were heard together by Goodnow, C. J.

The motion of the defendants Dunn to dismiss the trustees' petition and the trustees' motion to dismiss the Attorney General's bill were severally denied subject to exception. Numerous exceptions were taken by the parties in the course of the hearings. Exceptions were taken by all trustees and by the defendants Dunn to certain findings and rulings and provisions of the decree, and by the Hills trustees and the Dunns to the denial of requests for findings and rulings. The Dunns also excepted to the denial of their motion to set aside the Court's decree. The exceptions of all parties are reserved and transferred by the Presiding Justice.

The litigation presents questions arising out of the provisions of the wills to which reference has already been made. Dr. Alfred K. Hills, native, resident and benefactor of the town of Hudson, and sometime resident of New York, died in New York City on May 2, 1920 leaving an estate of approximately a million dollars. He was buried at Hudson. His second wife, Ida Virginia Creutzborg Hill, had died in 1908, leaving her estate to him. Thereafter Dr. Hills had married Jessie Norwell Hills, trustee named in the will of Mary F. Creutzborg, who was the mother of Virginia. Mrs. Creutzborg had lived with her daughter and son-in-law during their thirty odd years of married life, both in New York and at Hudson on Dr. Hills' family estate known as ‘Alvirne,’ a name derived from ‘Alfred’ and ‘Virginia.’ After her daughter's death, Mrs. Creutzborg continued to live with Dr. Hills and his third wife until Dr. Hills' death, and thereafter with Mrs. Hills until at the age of 102, she died on June 8, 1928.

By his last will executed in 1915, Dr. Hills provided for the ultimate establishment and endowment of a school on his family estate in Hudson, to be known as the ‘Alvirne Industrial School,’ naming Arthur Stedman Hills, a nephew, as trustee for this purpose. Previously, on November 15, 1915, Mrs. Creutzborg had made a will giving Dr. Hills the power at his death to appoint the beneficiary of the residue of her estate, and during his lifetime in his discretion to transfer the residue to appointees ‘for religious, charitable, educational, or memorial purposes.’ By codicil executed May 21, 1917, these provisions of the will were confirmed, and a Philadelphia Trust Company named to act as trustee in the event of Dr. Hills' death.

On September 5, 1919, Dr. Hills executed a codicil containing provisions in favor of Stedman Hills. This was revoked by a second codicil executed on September 9, 1919. On September 10, 1919, Mrs. Creutzborg executed a new will, leaving the residue of her estate to the Nashua Trust Company, as trustee, to become fully available upon the death of Jessie Norwell Hills, ‘to found, establish, and endow’ the charitable institution to be founded in accordance with the will of Dr. Hills, and directing payment of the same by her trustee, to ‘the proper ones to receive * * * it for endowing and establishing said institution’ in combination with funds from Dr. Hills' estate. Expressly recognizing Dr. Hills' failing health, she appointed another Executor.

Dr. Hills' will was admitted to probate in Hillsborough County on May 7, 1920, following his death on May 2. On May 21, 1920, the widow, Jessie Norwell Hills, executed a waiver of the will and election to take her statutory share, which was recorded in the registry of deeds on May 24, and filed in the registry of probate on June 15. An appeal from the probate of the will was taken by certain heirs on July 2, 1920, which was finally compromised on May 7, 1921, when probate was confirmed. At the same time a settlement of certain claims of Stedman Hills was effected.

While the appeal was pending, Mrs. Creutzborg on August 6, 1920 executed her last will, naming Jessie Norwell Hills trustee. The will, so far as material here, was confirmed by codicil executed June 30, 1921. There was evidence indicating her knowledge of the various proceedings having to do with the Hills will, and of the circumstances surrounding execution of the 1917 codicils, neither of which was probated.

The pertinent provisions of Dr. Hills' will, executed in 1915, are as follows:

‘Nineteenth: After providing for the foregoing legacies, annuities and bequests, and after the death of my wife, Jessie Norwell Hills, I give, devise and bequeath all the rest, residue and remainder of my estate, of every name and nature whatsover, not heretofore disposed of, including all lapsed and void legacies (if any), the principal held in trust for the raising of annuities after the respective deaths of the annuitants specified above, all property left to me by will for this purpose by Mary F. Creutzborg, together with the Alvirne Memorial Chapel, at Hudson, New Hampshire, and the land adjoining it belonging to me, not already given to Hills Farms Cemetery, to my nephew, Arthur Stedman Hills, in trust, nevertheless, for the following uses and purposes, to wit: To found, establish, organize and endow an association, school, or corporation, for educational, charitable and industrial purposes, at Hudson, New Hampshire, to be called the ‘Alvirne Industrial School’, for the benefit of the inhabitants of the State of New Hampshire, according to the general plan which I have disclosed to said Trustee, and with power and authority to assign, transfer, pay over and duly convey the said rest, residue and remainder of my estate to said association, school, or the corporation, which shall be founded, established and organized, as aforesaid, or to appoint by will or deed a trustee or trustees to whom said rest, residue and remainder of my estate shall belong, to be held in trust and used for the charitable and educational purposes aforesaid; provided, however, and it is my desire and my will that said trustee shall also have the power and authority to expend such portion of the principal of said rest, residue and remainder of my estate for the foundation and establishment of said association, school, or corporation, as to my said trustee shall seem advisable, in the exercise of his judgment; and that after such foundation, establishment and organization, the remaining principal of said rest, residue and remainder of my estate shall be considered to be an endowment, and shall be retained and invested according to law, and that the income thereon only shall be for use, and that said income shall be expended for the continuance, maintenance and support of the aforesaid charitable and educational objects and purposes. It is my will that the name of said association, school, or corporation, may be changed, from ‘Alvirne Industrial School’ to some other name, which is properly descriptive, provided, however, that whatever other change shall be made therein, the name ‘Alvirne’ shall be retained forever.

‘In the event of the death of my said trustee before the consummation of said plan, and without appointing a successor trustee by will or deed, as aforesaid, it is my will that the Court in which my will shall be proved or admitted to probate, or any other court having jurisdiction in the premises thereunto, shall appoint a trustee in the place of said Arthur Stedman Hills, to carry out the provisions of this clause of my will.’

The provisions of Mrs. Creutzborg's will, concerning which the Trustees seek advice appear in two clauses of the will:

‘Eighteenth: Alfred K. Hills, deceased, my beloved son-in-law, died a resident of New Hampshire, having provided by the nineteenth clause of his last will and testament, probated in said State, for the establishment at Hudson, New Hampshire of the ‘Alvirne Industrial School's as will more fully appear by his said will on file in the Probate Court, Hillsborough County New Hampshire.

‘Desiring to devote at least a portion of the residue of my estate to the Endowment and object of said school, provided said school is organized and conducted in accordance with the intent of said Alfred K. Hills, in the judgment of Jessie Norwell Hills, the widow of Alfred K. Hills, deceased (and she...