Merch.s Nat. Bank Of Manchester v. Berry

• Citation: 42 A.2d 693
• Parties: MERCHANTS NAT. BANK OF MANCHESTER v. BERRY et al.
• Decision Date: 05 June 1945
• Court: Supreme Court of New Hampshire

42 A.2d 693

MERCHANTS NAT. BANK OF MANCHESTER

v.BERRY et al.

Supreme Court of New Hampshire.

June 5, 1945.

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

Petition by the Merchants National Bank of Manchester, trustee under the will of William G. Berry, deceased, against Henry F. Berry and another for construction of the will, in which all questions of law were transferred without ruling.

Case discharged.

Petition, for construction of a will, by a trustee. The proposed questions relate to the provisions of paragraph XIII of the will of the late William G. Berry of Manchester, which paragraph is as follows:

‘XIII. All the rest, residue and remainder of my estate, real, personal or mixed, wherever found and however described, I give, bequeath and devise to the Merchants National Bank (Trust Department) of said Manchester, in trust, however, and to be known as the William G. Berry Trust Fund No. 3, said trust fund to be divided into six equal parts for the purposes hereinafter stated:

‘(a) One-sixth of said William G. Berry Trust Fund No. 3, I direct my said trustee to pay in equal shares to Marion Butler Eastman, Harriet Butler Salinger, Mary Colbath, and the Manchester District Nursing Association of Manchester, New Hampshire, and if any of said legatees mentioned in this clause are not living at the time of my death, then their share shall be paid in equal parts to the remaining legatees then living. Such part of said fund as is bequeathed to the Manchester District Nursing Association of said Manchester, shall constitute an endowment fund to be known as the William G. Berry Fund, such fund to be kept invested by the said Association and the net annual income thereof used for the benefit of crippled children in Manchester, New Hampshire and Pittsfield, New Hampshire.

‘(b) Each of the remaining five parts of said William G. Berry Trust Fund No. 3, I hereby give and bequeath as follows: To Mabel R. Berry, Laura Offutt, Harriet Denham, Mary Hamilton and Arthur D. Berry, each the sum of ten thousand ($10,000) dollars, and also equally the net annual income of the remainder thereof quarterly during the lifetime of each of said persons, and if any of said persons die leaving heirs in the descending line, then said heirs in the descending line shall take what each of the above would have received if living at my deceased. If any of the above-named leave no heirs in the descending line, then I give and bequeath his or her share to the Merchants National Bank (Trust Department), in trust, however, to be known as the William G. Berry Trust Fund No. 4, and I direct said trustee to pay one-fourth part thereof to the Manchester District Nursing Association of said Manchester, which shall constitute an endowment fund to be known as the William G. Berry Fund, such fund to be kept invested by the said Association and the net annual income thereof used for the benefit of crippled children in Manchester, New Hampshire and Pittsfield, New Hampshire.

‘I further direct said Trustee to pay one-fourth part thereof to the New Hampshire Association for the Blind, a corporation having a principal office at Concord, New Hampshire, to constitute an endowment fund to be known as the William G. Berry Fund, such fund to be kept invested by the New Hampshire Association for the Blind, and the annual income thereof used for the benefit of the Association in such manner as the directors thereof may direct.

‘I further direct said Trustee to pay one-fourth part thereof to the Gale Home, located at 133 Ash Street, Manchester, New Hampshire, to constitute an endowment fund to be known as the William G. Berry Fund, such fund to be kept invested by said Gale Home and the annual, income thereof used for the benefit of said Home in such manner as the directors thereof may direct.

‘The remaining one-fourth part thereof I direct said Trustee to hold in trust and to be known as the William G. Berry Trust Fund No. 5 for the benefit of the Congregational Church of Pittsfield, New Hampshire, and to perpetuate the memory of my father, William H. Berry, and my mother, Laura O. Berry.

‘And I direct my said Trustee to keep insured at all times the buildings of said Church property in a sum not less than seventy-five per cent. (75) of their true value and to pay out the remaining part of the annual net income of said fund to said Church for its use for the benefit of said Church in such manner as the directors thereof may direct.’

All questions of law raised by the petition were reserved and transferred without ruling by Blandin, J. Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester, for trustee.

Herbert W. Rainie, of Concord, for New Hampshire Ass'n for the Blind.

Albert H. White, of Manchester, for Albert Mathews.

Thorp & Branch, of Manchester (Frederick W. Branch, of Manchester, orally), for Laura Offutt and others.

Warren, Wilson & Wiggin, of Manchester, for Richard F. Berry and George Berry Hamilton.

McLane, Davis & Carleton and Robert P. Bingham, all of Manchester (Robert P. Bingham, of Manchester, orally), for Visiting Nurse Ass'n of Manchester, N. H.

Sulloway, Piper, Jones, Hollis & Godfrey, of Concord, and Louis Lawrence Green, of Boston, Mass. (Jonathan Piper, of Concord, orally), for George R. Berry.

Joseph J. Betley, pro se, of Manchester, as guardian ad litem.

JOHNSTON, Justice.

Only the rights of parties as they are presently entitled to have them enforced against the trustee will be considered. Gafney v. Kenison, 64 N.H. 354, 357, 10 A. 706; Gale v. Gale, 85 N.H. 358, 361, 159 A. 122. There are two principal questions: To what is Richard F. Berry entitled, and what belongs to Trust Fund No. 4 because of the death of Mabel R. Berry without heirs in the descending line prior to that of the testator?

‘In the absence of any clear evidence tending to show a purpose of intestacy, the presumption is that she intended that all of her estate should pass by her will.’ Clyde v. Lake, 78 N.H. 322, 323, 324, 100 A. 552; West v. Chase, 92 N.H. 104, 25 A.2d 688. In the present will there is no clear intent to benefit all the heirs-at-law. Moreover, there is evidence that the testator did not wish his heirs-at-law to take except as provided in his will. The fact that there was a detailed residual clause in the elaborate will supports the position that the testator did not intend to die intestate as to part of his estate. Of the six heirs he made substantial provision for four. Apparently he did not wish his heirs-at-law to take in fee except to a small extent...