Ordway v. Dow

• Court: Supreme Court of New Hampshire
• Citation: 55 N.H. 11
• Parties: Ordway v. Dow.
• Decision Date: 02 December 1874

55 N.H. 11

Ordway v. Dow.

Supreme Court of New Hampshire

December 2, 1874

M. G by her last will and testament, bequeathed the residue of her estate to W.N.D., to be held in trust for her grandson C.B.G until he should attain the age of twenty-five years, at which time the said trustee was ordered to pay over and deliver to the cestui que trust the estate so held in trust, from and after that time to belong to the said C.B.G., his heirs and assigns forever; but with the proviso, that if it should be found necessary to expend any portion of said trust-estate for the support of the said C.B.G., then so much and no more might be so appropriated for his support until he should attain that age. C.B.G. survived the testatrix, but died before attaining the age of twenty-five years. Held, that the legacy vested immediately upon the death of the testatrix in C.B.G., to be held in trust for him until he should attain the age of twenty-five years, and from and after that time to belong to him and his heirs discharged from the trust; and that upon his death before that age, the same descended to his legal representatives.

Declarations of the testatrix, made at the time of executing the will, to the effect that she desired to have it so drawn that in case C.B.G. died before reaching the age of twenty-five, none of the property should go to the family of his mother, are inadmissible upon the construction of the instrument

IN EQUITY. The bill was brought by John G. Ordway, of Epping, in said county, administrator of the goods and estate of Charles B. Godfrey, late of said Epping, deceased, against Winthrop N. Dow, of said Epping, executor of the last will and testament of Mehitable Godfrey, late of said Epping deceased, and residuary legatee in trust under the said will of the said Mehitable. It charges that the said Mehitable being possessed of considerable personal estate, duly made and executed her last will and testament in writing, dated November 13, 1868, in which she ordered her executors to pay all her just debts and funeral charges, and to erect suitable gravestones to her memory, and gave to her son, James M. Godfrey, the sum of five dollars and her brass clock, and then made the following bequests:

"Third. I give and bequeath to my grandson, Charles Brown Godfrey, thirteen hundred dollars in bank stock, to be delivered and paid to him on his attaining the age of twenty-one years, provided my decease occurs before that time; and if not, the same to be paid and delivered to him as soon after my decease as it can be done.

"Fourth. I give, bequeath, and devise unto Winthrop N. Dow, of said Epping, all the rest, residue, and remainder of my estate, whether real, personal, or mixed, wherever found or however situated, to be held in trust for my said grandson, Charles Brown Godfrey, until he shall attain the age of twenty-five years, at which time I order and direct the said Winthrop N. Dow to pay over and deliver to the said Charles Brown Godfrey all and singular the estate so by him held in trust as aforesaid, from and after that time to belong to the said Charles Brown Godfrey, his heirs and assigns forever. Provided, nevertheless, that if it shall be found necessary to expend any portion of said estate so holden by said Dow for the support of said Charles, then so much and no more may be so appropriated for his support until he shall attain the aforesaid age of twenty-five years;" that the said Mehitable appointed the said Winthrop N. Dow and Charles B. Godfrey executors of her said last will and testament; that the said Mehitable died on or about May 18, 1870, without revoking or altering her said will, and the said Winthrop N. Dow and Charles B. Godfrey, the executors therein named, caused said will to be duly proved, approved, and allowed at a court of probate, holden June 15, 1870, and accepted the said trust of executors, and gave bond according to law, and took possession of all the goods and effects of the said Mehitable; that the said Winthrop N. Dow and Charles B. Godfrey settled their account as executors of said will at a court of probate, holden June 14, 1871, whereupon, after paying all the just debts of the said Mehitable and her funeral charges

and the expenses of administration and erecting suitable gravestones to her memory, and paying all the specific legacies, including the said legacy of thirteen hundred dollars in bank stock to the said Charles, there was a balance found in their hands of $1,251.25; that the said Winthrop N. Dow accepted the said legacy to him in trust as aforesaid, and received and took into his possession said balance of $1,251.25, and has ever since held the same in his possession, with the interest which has accrued thereon, as the plaintiff has been informed and believes; but if the said balance did not actually pass into the possession of said Dow as residuary legatee in trust as aforesaid, the same has remained in his possession as executor of the last will of the said Mehitable; that the said Charles B. Godfrey was the grandson of the said Mehitable, and he and the said James M. Godfrey were her only heirs-at-law; that the said Charles B. Godfrey was born April 1, 1848, and died March 30, 1873, and the said John G. Ordway was duly appointed administrator of the goods and estate of the said Charles B. Godfrey, at a court of probate holden June 14, 1873, and accepted said trust, and gave bond according to law; that the said Charles B. Godfrey would have attained the aforesaid age of twenty-five years on the first day of April, 1873, and the said balance became due and payable,---and he, the said Ordway, as administrator of the said Charles, is entitled to have and receive the said balance of $1,251.25, in the hands and possession of the said Dow as aforesaid, together with the interest on the same, whether the said Dow holds the same as residuary legatee in trust as aforesaid, or as executor of the last will of the said Mehitable; that the said Ordway, as administrator of the said Charles as aforesaid, August 6, 1873, demanded of the said Dow the said balance of $1,251.25 in his hands as aforesaid, and the interest which has accrued thereon, and requested him to pay over and deliver the same to him, which said Dow absolutely refused to do.

The plaintiff prays that said Dow be required to answer, that an account be taken of the interest which he has received from said balance, or which has accrued thereon, and that he be ordered and decreed to pay over to the plaintiff, administrator as aforesaid, said balance of $1,251.25, and the interest which has been received or has accrued thereon, whether the same is in his hands as residuary legatee in trust as aforesaid, or as executor of the last will of the said Mehitable Godfrey, and for such further and other relief as the nature of the case may require and to the court may seem meet.

The answer admits all the facts well alleged in the bill, but denies that the plaintiff, as administrator of the estate of the said Charles B. Godfrey, is entitled to have and receive the said balance of $1,251.25 in the defendant's hands and possession, together with the interest on the same or any part thereof.

The defendant admits that he is executor of the last will and testament of said Mehitable, and residuary legatee in trust under her will; that the third and fourth items of her said will are correctly set forth in the bill; that said James M. Godfrey and Charles B. Godfrey were

the only heirs-at-law of the said Mehitable Godfrey; that said Charles B. Godfrey died unmarried and before attaining to the age of twenty-five years, and that the plaintiff is administrator of his estate.

The defendant claims that said Charles B. Godfrey was the only child of the late Charles L. Godfrey, deceased; that the said Charles L. Godfrey was a son of said Mehitable Godfrey, who survived him; that said James M. Godfrey is a son of said Mehitable Godfrey, and her only surviving child and her sole heir-at-law, and claimed that said balance of $1,251.25 is of the estate of said Mehitable and not of the estate of said Charles B. Godfrey, and belongs to him as her sole heir-at-law. And the defendant denies that he now has or has ever had in his hands or possession any money, choses in action, or property of any sort belonging to the estate of said Charles B. Godfrey, since his decease, or which the plaintiff as administrator of his estate is entitled to have and receive, unless said balance of $1,251.25 shall be adjudged to belong to the estate of said Charles B. Godfrey, which sum, deducting whatever the defendant may be entitled to receive for the custody and care thereof, he is ready to pay to whomsoever it shall be adjudged rightfully to belong; but he is advised that he cannot safely pay the same but by the order and direction of this court.

At the trial before SARGENT, C. J., it appeared that the father of Charles L. Godfrey died February 10, 1834. Charles L. died November 12, 1853, and his mother, the said Mehitable, May 18, 1870. James M. Godfrey testified that he was a brother of Charles L. Godfrey; that his mother lived with him at the time of making her will; that she assisted Charles B. Godfrey after his father's death; that Charles L. left over $1,000 in bank stock, which he gave to his mother, who kept the same and gave it to Charles B. Godfrey, and that said Charles B. also had the furniture that his father left; that the widow of Charles L. Godfrey is still living, and owns a house and some other property at Epping, and that she was a Brown before she married; that his mother lived with Charles while he lived; but that Charles L. and his wife did not then live together.

The plaintiff offered to prove that the property which Mrs Godfrey left...