Merrow v. Merrow
| Decision Date | 30 July 1963 |
| Citation | 193 A.2d 19,105 N.H. 103 |
| Parties | Parker M. MERROW, Inc. and Co-Trustee u/w/o Lyford A. Merrow v. Grace W. MERROW et al. |
| Court | New Hampshire Supreme Court |
Kalled, Ganem & Cox, Wolfeboro, for plaintiff.
Lawrence W. Walsh, guardian ad litem, pro se.
Ernest R. D'Amours, Manchester, Director of Charitable Trusts, pro se, furnished no brief.
The devise involved in these proceedings reads as follows:
Fourteenth. To my wife, Rena McLauthlin Merrow, and my son, Parker McLauthlin Merrow, my estate at Center Ossipee, New Hampshire, known as 'Long Look' * * * to be held by them * * * for the term of their joint lives and to be held by the survivor at the death of the other for the term of his or her life * * * At the termination for any cause of the life tenancies in this property of my wife and son, above provided for, I give said estate outright * * * in equal shares to the issue of my son, if he shall have any then surviving him.' In the absence of such issue the estate is given for life to a sister and brother of the testator, who are now both deceased, and at their death 'to my trustee, in trust' for certain charitable purposes.
Rena McLauthlin Merrow has deceased. Plaintiff is the Parker McLauthlin Merrow referred to in the will. The defendant Grace W. Merrow is his wife. They have two children, Lyford A. Merrow II, who has three minor children, and Ann W. Burghardt, who has one minor child. All are defendants in these proceedings.
The Trial Court found expedient the proposed sale to Lyford A. Merrow II of a part of the above devised real estate in exchange for a deed to a parcel of abutting real estate and found and ruled that this sale be authorized. RSA 477:39; Donovan v. Smith, 81 N.H. 83, 122 A. 451; Brierley v. Brierley, 81 N.H. 133, 135, 124 A. 311.
The Trial Court also found and ruled that in order to draft the deed from Parker Merrow to the owners of 'Long Look', in accordance with their respective interests as set forth in the will, it would be advisable to know whether the devise of the remainder to the issue of Parker Merrow is a devise to them 'per capita' or 'per stirpes'.
The first question transferred to this court is the following: 'Should the meaning of the above quoted provision of the will be determined in this action'?
The law is well settled in this state, that fiduciaries can seek advice and instructions in regard to questions necessarily arising in the administration of their trusts. Gay v. Gay, 97 N.H. 358, 359, 88 A.2d 178. The purpose is to protect a trustee in the discharge of his duties and to facilitate the execution of his functions. Bisson v. Gosselin, 90 N.H. 273, 275, 6 A.2d 766. The plaintiff is a trustee under this will and we assume will be appointed trustee in accordance with the prayer in his petition to sell and make the conveyance to be authorized under RSA 477:39. In return he will receive a deed to an adjoining lot and must determine the nature of this grant. The Trial Court has found that the requested instructions would facilitate the execution of his trust. Consequently we are of the opinion that these instructions should be given and the answer to the first question transferred is 'YES'. Duncan v. Bigelow, 96 N.H. 216, 218, 72 A.2d 497.
The second question is 'does the devise 'in equal shares to the issue of my son, if he shall have any then surviving him' devise the property to such issue 'per capita' or 'per stirpes".
After devising life estates to his wife and to his son, the plaintiff, and to the survivor, the testator's will provides that at the termination of these life tenancies the estate shall pass outright 'in equal shares to the issue of my son, if he shall have any then surviving'.
The Trial Court has found that except for the will itself the only other evidence as to the testator's intent 'is the testimony of Parker M. Merrow. From his testimony it is found that one Arthur Blodgett and one Martin McLaughlin, who became two of the executors of the will, conferred with the testator about one month prior to his death relative to the provisions of the will, and those gentlemen later advised Parker Merrow, who also became an executor, to the effect that this devise is to Parker Merrow's issue 'per stirpes'.'
Our law is well settled that the testator's intent is the sovereign guide in the interpretation of his will. Amoskeag Trust Co. v. Haskell, 96 N.H. 89, 91, 70 A.2d 210, 71 A.2d 408. His intent is determined by such competent evidence as tends to place the court in the testator's position Colony v. Colony, 97 N.H. 386, 392, 89 A.2d 909. However his intention must be derived from the contents of his will and not from his declarations concerning his intent whether made before or after the execution of his will. Hills v. D'Amours, 95 N.H. 130, 137, 59 A.2d 551. A different intent expressed by the testator after the execution of his will would not be admissible to change the interpretation which is required by the expressed language of his will. Jones v. Bennett, 78 N.H. 224, 99 A. 18; Steinbrenner v. Dreher, 140 Ohio St. 305, 43 N.E.2d 283; 4 Page on Wills (Bowe-Parker Rev.) s. 32.9, p. 266.
In devising the remainder, after the termination of life estates, 'to the issue of my son if he shall have any then surviving him' it seems to us that the testator expressed a clear intention that the identity of the issue of his son who were to receive this remainder was to be determined at the termination of the life estates which as the events have taken place means at the death of Parker M. Merrow. Colony v. Colony, 97 N.H. 386, 392, 89 A.2d 909.
The word 'issue' in its ordinary meaning is descriptive of the lineal descendants of the deceased which include children, grandchildren and greatgrandchildren. RSA 21:20; Morse v. Osborne, 75 N.H. 487, 488, 77 A. 403, 30 L.R.A.,N.S., 914; Sylvester v. Newhall, 97 N.H. 267, 271, 85 A.2d 378. RSA 561:1 provides that the real estate of a deceased shall descend to his issue in the following manner: it 'shall descend in equal shares * * * [t]o the children of the deceased and the legal representatives of such of them as are dead.' We are of the opinion that this is what the testator intended by the devise 'in equal shares to the issue of my son, if he shall have any then surviving him.'
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Sayewich's Estate, In re, 79-219
...that evidence of direct declarations of intent is generally inadmissible to show a testatrix's actual intent. Merrow v. Merrow, 105 N.H. 103, 193 A.2d 19 (1963); Hills v. D'Amours, 95 N.H. 130, 59 A.2d 551 (1948); 4 Page, Wills § 32.9 (Bowe-Parker ed. 1961). But cf. RSA 516:25 (declarations......
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Royce v. Denby's Estate, 7751
...(footnote omitted)." This court has held that a testator's intent is the sovereign guide to interpreting her will. Merrow v. Merrow, 105 N.H. 103, 193 A.2d 19 (1963). "It is well established law in this state that the intent of the testatrix as expressed in her will is to be given effect." ......
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Amoskeag Trust Co. v. Preston
...defendant Pearle freely concedes that the weight of authority is against her position. Annot. 86 A.L.R.2d 12, 80. See Merrow v. Merrow, 105 N.H. 103, 106, 193 A.2d 19. In fact, when, as in the present instance, she was adopted after the testatrix's death, only a small minority would support......