Owen v. Busiel

• Decision Date: 28 June 1928
• Citation: 142 A. 692
• Parties: OWEN et al. v. BUSIEL et al.
• Court: New Hampshire Supreme Court

142 A. 692

OWEN et al.

v. BUSIEL et al.

Supreme Court of New Hampshire. Belknap.

June 28, 1928.

Transferred from Superior Court, Belknap County; Young, Judge.

Bill by Stanton Owen and another, executors of the will of John T. Busiel. for advice in regard to interpretation of will, opposed by Helen J. Busiel and others. Instructions in accordance with opinion, and case discharged.

Bill in equity by the executors of the will of John T. Busiel, late of Laconia, praying the advice of the court in regard to the interpretation of said will. Transferred upon the bill and answers without ruling.

The excutors desire advice in regard to the effect of the following provisions of the will and the first codicil thereto: From the will:

"Third: I give, and bequeath to my daughter, Helen J. Busiel the sum of thirty thousand dollars; also, I give, bequeath and devise to the said Helen J. Busiel my residence on Church street, so called, in said Laconia, together with its contents, also one undivided half of Ragged Island, so called, in Lake Winnipesaukee, with the camp thereon.

"Fourth: All the rest, residue and remainder of my estate both real, personal and mixed, I give and bequeath to the Boston Safe Deposit and Trust Company of Boston, Massachusetts, to be had and holden during the life of my said daughter Helen J. Busiel upon the trust following, that is to say; to hold, invest, reinvest and keep invested the same and collect and receive the income thereof and after paying from such income the taxes and other disbursements and charges incident to such trust and trust estate properly chargeable against the income to pay over the residue thereof, or net income of such trust estate' to my said daughter, Helen J. Busiel, so long as she may live in regular quarterly installments."

From the first codicil:

"Whereas I further desire to prevent any embarrassment or unnecessary sacrifice to my estate, in closing my business in said Laconia, which has been and is conducted under the firm name of J. W. Busiel & Co., of which I am sole owner.

"First: I hereby authorize and direct my executors to continue and conduct said business as I might do if alive, as executors, for and during the business year in which I may be taken away, and for said time to allow the money and rights of my estate invested in said business to remain intact therein, paying to my daughter, Helen J. Busiel, if alive, the sum of two hundred dollars per month, during the portion of the business year when my executors and those specified in this will may carry on my business to fill the orders on my books at the time of my decease. And I further especially authorize and empower my said executors whenever it shall seem to them expedient and profitable during said business year or thereafter, to sell said business, including stock in trade, machinery and real estate, to such person or persons, or corporation, and at such price as to them shall seem suitable and satisfactory, without license from the court of probate in which my said will shall be probated. * * *

"Second: I direct my executors to transfer immediately after my decease, to my daughter, Helen J. Busiel, in lieu of the $30,000.00 named in this will, the following named stocks owned by me, 70 shares American Telephone & Telegraph Co., 50 shares American Car & Foundry Co. preferred; 100 shares American Sugar Refining Co. preferred; and 55 shares People's Gas Light & Coke Co. Chicago, and mean that these stocks shall be given to her in place of the sum of $30,000.00 given her elsewhere in this will."

The executors decided to carry on said business but were unable to make sale thereof during the business year in which the testator died, but did make sale thereof on January 1, 1926, up to which date they carried on the business. The executors, construing the monthly stipend provided by the will to be intended as a substitute for the income which would accrue to the daughter if the business were at once disposed of and the fund invested by a trustee as named in the will, paid the $200 per month to her as long as they carried on the business.

The first question upon which the advice of the court is asked is whether this construction of the will is correct.

The executors did not find the certificates for any of the stocks named in the second paragraph of the first codicil, among the assets of the estate, and their second request is for advice in regard to the rights of Helen J. Busiel, hereinafter referred to as the defendant, under the fourth paragraph of the will and said second paragraph of the first codicil. Other facts are stated in the opinion.

Owen & Veazey, of Laconia, for plaintiffs.

Frank N. Parsons, of Franklin, for Helen J. Busiel.

W. M. Plummer, of Laconia, and R. E. Shute, of Exeter, for other defendants.

BRANCH, J. 1. The answer...