Roberts v. Trustees of Trust Fund for Town of Tamworth
| Decision Date | 02 May 1950 |
| Citation | 73 A.2d 119,96 N.H. 223 |
| Parties | ROBERTS v. TRUSTEES OF TRUST FUND FOR TOWN OF TAMWORTH et al. |
| Court | New Hampshire Supreme Court |
Burnham B. Davis, Conway, for plaintiff, filed no brief.
Rupert F. Aldrich, Norway, Me., and Varney, Levy & Winton, Portsmouth, for legatees, Everts and Roscoe Mayberry.
Benjamin L. Berman, Lewiston, Me., and Arthur J. Reinhart, Portsmouth, for legatee, Giola Page.
The remaining defendants pro se joined in the prayer for the construction of the will or entered no appearances.
The will contains twenty-two clauses and names thirty-three as legatees or substituted legatees. The language of the will and the fact that an attesting witness was an attorney indicate that the draftsman was familiar with legal terms, Mulvanity v. Nute, 95 N.H. 526, 68 A.2d 536, and 'the principle of lapse of legacies.' Franklin Nat. Bank v. Gerould, 90 N.H. 397, 398, 10 A.2d 257, 258. Thus four clauses of the will provided for substituted legatees 'in the event I outlive him.' Her bequests to two churches contained the express provision that they 'shall not lapse because of error in giving corporate names.' In another clause of the will bequeathing household furniture to two nephews in equal shares, the testatrix stipulated 'survivorship as of the time of my death.'
The thirteenth clause of the will by its express terms called for survivorship of the testatrix and since both legatees predeceased her, the bequest falls into the residuary clause of the will. The fourteenth and fifteenth clauses of the will are not controlled by the anti-lapse statute, R.L. c. 350, § 12, as its conditions are not met. The statute requires that the legatees must have 'heirs in the descending line' in order that the legacies will not lapse. There being none, the bequests become a part of the residue of the estate. The testatrix knew how to prevent lapses when she so desired and the failure to do so in these two clauses is indicative of an intentional omission.
The construction placed on the clauses of the will discussed above are consistent with each other, the anti-lapse statute and the will as a whole. The exception appears in the fifth clause. It is frequently said in will cases that the testatrix' intention is the sovereign guide in the interpretation of a will. No one disputes the truth of this beguiling and sonorous statement but candor compels the admission that it is of doubtful utility in determining intent where there may be none. 'In many cases the court is ascertaining not what the [testator] actually intended in regard to a particular matter but what he would have intended if he had thought about the matter.' 2 Scott, Trusts, § 164.1, p. 831. If the testatrix did not think about the matter, it is difficult to say that she had an intent with respect to it. In that case the court is looking for a black hat in a dark room; if the court locates it there at all, it will be on its own head and not because of any light left by the last will and testament. Discerning critics, other than Scott, have recognized this to be true. Gray, the Nature and Sources of the Law (1921) 172, 173; Curtis, A Better Theory of Legal Interpretation (1949) 4 Record 321, 324-325. If courts can fairly and reasonably ascertain the decedent's desire from the will, intellectual honesty requires that they say so without resorting to a fiction of intent where none existed. See Petition of Wolcott, 95 N.H. 23, 56 A.2d 641, 1 A.L.R.2d 1323.
If the draftsman thought of the contingency that one of the legatees in the fifth clause might not survive the testatrix, it was not specifically expressed. As a matter of logic it may be argued that the share of Maud Huntress becomes part of the residue. Considering the personal nature of the bequest, the fact that all of her personal belongings except furniture were given only to the three named in this clause, that the linens were in the nature of heirlooms, that their value was more sentimental than monetary and the unlikelihood that the testatrix would desire that a one-third interest therein would be divided among six possible residuary legatees, the argument appears less convincing. 'Where the testator's desire may be gathered from the will, 'strict logic' need not be controlling.' Petition of Oliver Wolcott, supra, 95 N.H. at page 26, 56 A.2d at page 643. All the legatees named in this clause were daughters of her cousins, and there are persuasive reasons indicating a purpose to dispose of her linens and bedding in this clause of the will rather than in the residuary clause. Wilkins v. Miltimore, 95 N.H. 17, 56 A.2d 535. In accordance with the analogous case of Fowler v. Whelan, 83 N.H. 453, 144 A. 63, 75 A.L.R. 752, the executor is advised that the bequest belongs to the surviving legatees Lillian D. Gordon and Marjorie Hamlin.
A substantial share of the testatrix' estate was given to her six named cousins each...
To continue reading
Request your trial
- State v. Carpentino
-
Doonan's Estate, In re
... ... citizen, who had been a legislator, town moderator, deputy sheriff, justice of the peace, ... 419, 426, 170 A. 1, 171 A. 441; Amoskeag Trust Company v. Haskell, 96 N.H. 89, 70 A.2d 210, 71 ... 155, 255 A.2d 512. In Roberts v. Trustees of Trust Fund for Town of Tamworth, ... ...
-
Commerce Nat. Bank of Toledo v. Browning
...1019; Will of Waterbury, 1916, 163 Wis. 510, 158 N.W. 340; Will of Nielsen, 1950, 256 Wis. 521, 41 N.W.2d 369; Roberts, Exr., v. Tamworth, 1950, 96 N.H. 223, 73 A.2d 119 (by This rule of law has recently been followed in decisions by a Probate Court and a Court of Appeals in this state. San......
-
Frolich's Estate, In re
...rev. 1962); 2 Jarman, Wills 1016-20 (7th ed. 1930); 9 N.Y.U.Intra.L.Rev. 262, 267 (1954). See also Roberts v. Trustees of Trust Fund for Town of Tamworth, 96 N.H. 223, 73 A.2d 119 (1950); Fowler v. Whelan, 83 N.H. 453, 144 A. 63 (1928). Where a resort to constructional fiction is frequent b......