McAllister v. Hayes

• Decision Date: 04 April 1911
• Citation: 79 A. 726,76 N.H. 108
• Parties: MCALLISTER v. HAYES et al.
• Court: New Hampshire Supreme Court

79 A. 726

76 N.H. 108

MCALLISTER

v. HAYES et al.

Supreme Court of New Hampshire. Hillsborough.

April 4, 1911.

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

Suit by George i. McAllister, as trustee, against Charles C. Hayes, executor of George S. Elliot, for construction of the will of John S. Elliot, deceased. Case transferred from the superior court. Will construed, and case discharged.

The third paragraph of the will is as follows: "I give to said Balch the sum of twenty thousand dollars during the life of my son, George F. Elliot, in trust to safely invest the same and pay the net income thereof to him or for his benefit, at the discretion of the trustee from time to time, as he shall judge to be for his best interests, wishing in this way, so far as I may, to provide for the contingencies and misfortunes that sometimes come to the most prudent men." The testator also bequeathed to Balch "the sum of five thousand dollars, in trust to safely invest the same and its accruing interest until my grandson, John S. Elliot, Jr., shall be sixteen years of age, and then apply so much thereof as shall be required for the education of my said grandson in a thorough manner for such business or profession as said trustee, having regard to the tastes and capabilities and habits of my said grandson, shall deem most for his advantage and usefulness in life, and to pay the unexpended balance from time to time to him, or for his benefit, in the discretion of said trustee, as he shall deem for his best good." The will also made provision for the testator's wife and sister, and contained the following residuary clause: "All the rest, residue, and remainder of my estate of whatever nature, I give, bequeath, and devise to the said George F. Elliot, said residue to include the said sum of five thousand dollars, or its accumulations, in case my said grandson shall not live to the aforesaid age of sixteen years."

The testator executed the will on May 13, 1876, and two days later added a codicil thereto, as follows: "Whereas, I, John S. Elliot. * * * made and executed my last will and testament in writing, and whereas by my said will I gave to Charles E. Balch, in trust for my son George F. Elliot, during his life, the sum of twenty thousand dollars, now I do hereby make and declare this writing to be a codicil to my said last will and testament, to be annexed to and taken and allowed as a part thereof; and that after the decease of my son, George F. Elliot, and all of his lawful heirs, I give and bequeath in equal shares of the said twenty thousand dollars in trust, to the following named persons," mentioning by name seven nephews and nieces, "to them the said" persons "and their heirs and assigns forever in equal shares, as hereinbefore stated."

The testator died November 29, 1876. At that time his son George F. had one child, John S. Elliot, Jr. Another son, G. Perley, was born January 21, 1877. and a daughter, Gladys M., was born September 30. 1887. George F. died October 6, 1905, testate. Some of the income that had accrued before his death is now in the hands of the trustee, as well as the income that has since accrued. Lucena M. Elliot, widow of George and one of the defendants, claims that the trustee should pay the income from said trust fund to her by virtue of a certain conveyance to her signed by her three children, who it is claimed are entitled to it under their grandfather's will. The nephews and nieces, legatees in the codicil of the will of John S. Elliot, also claim said income. Upon these facts the plaintiff requests the advice of the court as to the disposition of the income in his hands.

George I. McAllister, pro se. Charles C. Hayes, pro se.

Burnham, Brown. Jones & Warren and Robert L. Manning, for Lucena M. Elliot. John H. Appleton, Herbert L Wilson, and Harry J. Brown, for nephews and nieces.

WALKER, J. If the testator's intention is determined by a literal interpretation of the language he used, the fund of $20,000 would not be payable to his nephews and nieces until after the death of George and the death of "all his lawful heirs." He does not specifically provide what shall be done with the fund and its income during the time that may elapse between George's death and the death of all his heirs. Was it his purpose, legally inferable from the will, that the fund should be held in abeyance during the lifetime of his grandchildren? That it was his purpose that the fund should eventually pass absolutely to the legatees named is too plain for argument. No trust was created for them. The words "in trust" in the bequests to them are merely descriptive of the fund bequeathed. Tappan's Appeal, 55 N. H. 317.

But the literal significance of the language used leads to the conclusion that they were not to have it while George's children lived; and the question is whether there is competent evidence disclosed by the case which shows that he did not have that intention, and, if he did not, what his intention was with reference to the time when his nephews and nieces should be entitled to the full enjoyment of the fund. In the absence of such evidence, or in the absence of sufficient evidence that, notwithstanding the language of the codicil, he intended that his nephews and nieces should have the fund upon the death of George, the literal meaning must prevail. The court cannot undertake to make a will for the testator upon the mere conjecture that he may have inadvertently or without full consideration failed to apprehend the force and effect of his language. Paul v. Philbrick, 73 N. H. 237, GO Atl. 682. The presumption is, in the first instance, that he intended what his language naturally imparts. If such was not his purpose, the fact must be found upon a judicial consideration of competent evidence tending to show its existence, and not by the exercise of testamentary power.

One of the general purposes of the testator, as...