Langdell v. Dodge

• Decision Date: 27 April 1956
• Citation: 100 N.H. 118,122 A.2d 529
• Parties: Ralph E. LANGDELL, Adm'r, d/b/n w/w/a of the Estate of Hollis F. Towne, v. Orien B. DODGE, Adm'r of the Estate of Sadie M. Towne.
• Court: New Hampshire Supreme Court

Page 529

122 A.2d 529

100 N.H. 118

Ralph E. LANGDELL, Adm'r, d/b/n w/w/a of the Estate of Hollis F. Towne, v. Orien B. DODGE, Adm'r of the Estate of Sadie M. Towne.

Supreme Court of New Hampshire.

Argued Feb. 7, 1956.

Decided March 6, 1956.

On Rehearing April 27, 1956.

Wyman, Starr, Booth, Wadleigh & Langdell, and Charles J. Dunn, Manchester, for plaintiff.

Eaton & Eaton, Manchester, for defendant.

BLANDIN, Justice.

The first question we shall consider is whether the testator intended to give to the remaindermen all income received by the life tenant and unexpended by her at the time of her death or whether it became hers absolutely so that it goes to her heirs. This is not a case where the testator's intent is plain from the language used, cf. McAllister v. Hayes, 76 N.H. 108, 111, 79 A. 726, but is one in which that intent must be determined by a balance of probabilities. Romprey v. Brothers, 95 N.H. 258, 260, 61 A.2d 793; Colony v. Colony, 97 N.H. 386, 391, 89 A.2d 909. In so doing it seems that certain salient facts appear. The first is that the testator apparently considered income and principal separately, rather than treating his estate as a unit, as was the situation in Kimball v. New Hampshire Bible Society, 65 N.H. 139, 23 A. 83-85. In giving to his wife the remainder of his estate to use the income for life and the principal if necessary, he made a direct gift to her of the income. Ruel v. Hardy, 90 N.H. 240, 242, 6 A.2d 753. Her comfort and happiness and not the unity of his estate, which was to be split up eventually among four nieces and nephews, seems to have been the testator's first concern. If, as was said in Kimball v. New Hampshire Bible Society, supra, 65 N.H. 151, 23 A. 84, relied upon by the plaintiff, 'slight evidence may be enough to prove an intention' that unexpended income shall become a part of the principal and unity of the estate be preserved, no reason appears why the converse should not be true. Here such evidence as there is points to a separation of income and principal. The wife was not directed to use the estate as a unit as was the situation in the Kimball case, where she was bequeathed 'all my personal and real estate during her natural life, to be used and managed by her as she shall see fit.' 65 N.H. at page 140, 23 A. at page 84. Rather, she was to enjoy the income separately and then use the principal if necessary.

Another factor which indicates the testator sought to separate income and principal is that we believe it unlikely he would desire to burden his wife with the matter of accounting for income. Problems of this nature might have been so vexing and worrisome as to have militated against her enjoyment of the property. It is to be presumed that the testator intended to make a practical disposition of his estate so that his wife could manage it with a minimum of trouble and did not intend to create a situation which would cause her worry and harassment. Cowan v. Cowan, 90 N.H. 198, 201, 6 A.2d 179.

It is also significant that he left 'the rest, residue and remainder' of his estate to his wife 'to use and enjoy the income thereof' for life, with authority to invade the principal under certain conditions, and on her decease he gave 'whatever portion may be remaining of said residue,' (emphasis supplied) to his nieces and nephews. This is unlike the language used in McPhee v. Colburn, 98 N.H. 406, 101 A.2d 458, 460, relied upon by the plaintiff, where the income of the residue was bequeathed to the testator's wife for life, together with the right to use the principal for certain purposes, but 'what remains of my property' at the wife's death was given to the testator's two children. In the case before us the 'residue' was treated as separate and distinct from the 'income thereof.' The word 'residue' in the first instance referred to the principal amount of the estate remaining, the use and enjoyment of the income from which was bequeathed to the wife for life. So also we believe that the subsequent use of the words 'said residue' in disposing of the remainder at the wife's death meant the same and referred to the principal amount then remaining. Fowler v. Whelan, 83 N.H. 453, 457, 144 A. 63, 75 A.L.R. 752.

In Martin v. Eaton, 57 N.H. 154, on facts similar to those now before us, a unanimous court in separate opinions held that all income savings and accumulations unexpended by the widow during her lifetime went to her heirs upon her death. Interpreting the instrument in the light of all the circumstances, our conclusion in answer to the first question is that the will does not give the income unexpended at the widow's death to the remaindermen but that it became a part of the widow's estate.

The next question is whether we shall follow the law established by Holbrook v. Holbrook, 74 N.H. 201, 66 A. 124, 12 L.R.A.,N.S., 768, which requires an investigation of the facts to determine whether the stock dividends declared after the death of the testator and during the life of his wife should be treated as principal or income, or whether we should adopt the majority or so-called Massachusetts rule that they shall be considered as principal. At the time the Holbrook opinion was handed down some fifty years ago, it was conceded that many jurisdictions took a contrary view. Since then, decisions and reasons have multiplied against the Holbrook holding, so it is now clear that the weight of authority supports the Massachusetts rule, as set forth in Minot v. Paine, 99 Mass. 101. See also Restatement, Trusts, § 236, 1948 Supp.; Note, 44 A.L.R.2d 1277. Pennsylvania, for example, which once had a rule similar to ours as to the apportionment of stock dividends between the life tenant and the remainderman, has now followed Massachusetts through the enactment of a statute. Pa.Laws 1945, No. 171, p. 416, Laws 1947, No. 516, p. 1283, 20 P.S. §§ 3470.1-3470.15. New York State also, where vast numbers of trusts have been and are administered, after trying several formulas including that of the Holbrook case, enacted a statute conforming in essentials to the Massachusetts principle. The reasons for the change are well stated in an opinion which refers to Matter of Osborne, 209 N.Y. 450, 103 N.E. 723, 823, 50 L.R.A.,N.S., 510, where the Court says, as an example of the problems which arise when an attempt is made to follow the rationale of the Holbrook decision, 'the rule of the Osborne Case was supposed to be simple and just; it proved to be confusing and at times unjust. * * * The Legislature gave us the much needed relief by enacting chapter 843 of the Laws of 1926, * * * whereby...