Lovell v. Town of Charlestown

• Decision Date: 31 July 1891
• Citation: 32 A. 160,66 N.H. 584
• Parties: LOVELL v. TOWN OF CHARLESTOWN et al.
• Court: New Hampshire Supreme Court

32 A. 160

66 N.H. 584

LOVELL

v. TOWN OF CHARLESTOWN et al.

Supreme Court of New Hampshire. Cheshire.

July 31, 1891.

Bill in equity by Bolivar Lovell, trustee, against the town of Charlestown and others, for direction under a will.

Asahel Porter, of Alstead, deceased on the 22d day of July, 1862, leaving a last will and testament, dated February 10, 1862, which was duly admitted to probate. In said will are certain legacies, to take effect immediately after the death of the testator, which, with the debts and expenses of administration, have been paid. Besides said legacies, said will contains the following provisions, viz.: "After the payment of my debts and the payment of said legacy to Widow Eliza A. Holton, the interest and income of all the rest and residue of my property 1 give and bequeath to my beloved wife, Martha S. Porter, both real and personal property, to have and to hold the same during her natural life, to be paid to her in annual payments; and I hereby appoint my friend, Doctor Winslow B. Porter, trustee, to take charge of said estate, and to pay the income or interest arising thereon to my said wife. One thousand dollars of said principal, in the hands of said trustee, immediately on the death of my said wife, I give and bequeath to my oldest brother, Burrill Porter, and order that the same be paid over to him immediately on the decease of my wife; to hold to him and his heirs forever. Five hundred dollars of said principal, in the hands of said trustee, on the death of my said wife, I give and bequeath to Miss Jeannette Poland, and order that the same be paid over to her immediately on the decease of my wife, to have and to hold the same to her and her heirs forever. All the rest and residue of my property, both personal and real, in the hands of said trustee, or otherwise not hereby disposed of at the decease of my wife, I give and bequeath to my native town, the town of Charlestown, in the county of Sullivan, and state of New Hampshire, to be held by said town forever as a fund, the income and interest of which to be annually in the month of December in each and every year, forever, under the direction and superintendence of the selectmen of said Charlestown, to be paid to and divided equally among all the widow ladies belonging at the time or residents of said town of Charlestown; meaning that no widow shall, worth at any time over five hundred dollars, take anything by this will; neither shall any widow take anything by this will when she ceases to be a widow, or ceases to be an inhabitant of said town of Charlestown." The widow of said testator, on the 7th day of October, 1862, in the probate court for said county, duly waived the provisions of said will in her favor. August 17, 1877, the petitioner was appointed by the probate court trustee under said will, and as such trustee received on October 13, 1877, $2,215.19, which sum, with the accumulation thereof, he now holds. The widow of said testator died in January, 1891, and none of the legacies named in the portion of the will herein quoted have been paid. Your petitioner, being in doubt as to the true construction of said will, and the rights of the legatees and their representatives under it, asks the court to instruct him as to his duties, and how said fund shall be distributed, and more particularly on the following questions:

The following questions are presented: (1) Is the bequest to the town of Charlestown of such a nature that said town can legally accept and hold the same? (2) Did tie legacies of $1,000 and $500 become due and payable to the respective legatees upon the date of the waiver of the will or upon the death of the testator's widow? (3) Do the accumulations of interest upon said legacies now belong to said town alone, as it claims, or do they belong to said Jeannette Pratt, the representatives of Burrill Porter, and said town, in proportion as they are entitled to receive the principal? Burrill Porter has died since the decease of the testator. The executors of his will, and also ...