Rollins v. Merrill

• Citation: 48 A. 1088,70 N.H. 436
• Parties: ROLLINS v. MERRILL et al.
• Decision Date: 15 March 1901
• Court: Supreme Court of New Hampshire

48 A. 1088

70 N.H. 436

ROLLINS v. MERRILL et al.

Supreme Court of New Hampshire. Rockingham.

March 15, 1901.

Suit by William H. Rollins, as executor of Lucy B. Smith, deceased, against Maria Merrill and another, for the construction of a will. Will construed.

The will contains the following bequest: "To George Amiable, of said Portsmouth, three hundred dollars, to be held by him and applied, at his discretion, for the benefit of Salome B. Stavers." Annable and Salome B. Stavers both died during the lifetime of the testatrix. Salome left one son, Andrew L. Stavers, who is now living. The will contains a residuary clause. There is also a legacy as follows: "For the care of the lot in the cemetery, the sum of two hundred dollars, the income thereof to be used under the charge of Nathan Parker Simes, in the care of the lot and gravestones, and, on the death or refusal to act of said Simes, to be paid to the trustees of the South Church Charity Fund, on their undertaking to keep said lot and stones in order." Simes died before the testatrix, and the trustees named declined to accept the bequest. The executor is unable to find a trustee who will undertake the trust with the condition annexed thereto by the will. He asks whether the bequest to Salome B. Stavers lapsed, and what disposition shall be made of the bequest for the care of the cemetery lot.

Willian H. Rollins, in pro. per. Samuel W. Emery and Thomas H. Simes, for the residuary legatees.

George F. Parker, for Andrew L. Stavers.

PEASLEE, J. The legacy to Annable, in trust for Mrs. Stavers, was a gift of the whole of the fund. If she had survived the testatrix, and a part of the fund had remained undisposed of at her own decease, the residue would have gone to her representatives, and not to the residuary legatee named by the testatrix. Sawyer v. Banfield, 55 N. H. 149. That case decides that the language there used expressed an intent to dispose of the whole of the sum mentioned. The form of the bequest is substantially the same as in the present case. In the absence of evidence that this testatrix used the language in some other sense, it should be given the meaning already attributed to it in the decisions in this state. The gift being of the whole fund, and the beneficiary having died in the lifetime of the testatrix, the money goes to the son of the deceased legatee. Pub. St. c. 186, § 12.

The legacy for the care of the cemetery lot cannot take effect exactly as the testatrix intended,...