Rollins v. Merrill

Decision Date15 March 1901
Citation48 A. 1088,70 N.H. 436
PartiesROLLINS v. MERRILL et al.
CourtNew Hampshire Supreme Court

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,...

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7 cases
  • Foote v. Nickerson
    • United States
    • New Hampshire Supreme Court
    • March 15, 1901
  • Hester v. Sammons
    • United States
    • Virginia Supreme Court
    • September 9, 1938
    ...and our courts cannot make exceptions and uphold distinctions where the plain letter of the law recognizes none." In Rollins Merrill, 70 N.H. 436, 48 A. 1088, it appears that a will contained the following "To George Annable, of said Portsmouth, three hundred dollars, to be held by him and ......
  • Davie v. Rochester Cemetery Ass'n
    • United States
    • New Hampshire Supreme Court
    • December 2, 1941
    ...to its membership. The charitable nature of gifts for the upkeep of cemetery lots is recognized in this jurisdiction (Rollins v. Merrill, 70 N.H. 436, 437, 48 A. 1088), and cemetery corporations as well as the trustees of towns are authorized by statute to hold funds in trust, "to apply the......
  • Swan v. Bailey
    • United States
    • New Hampshire Supreme Court
    • May 7, 1929
    ...of the trustee after the death of the testator's son would go to the son's heirs. Clyde v. Lake, 78 N. H. 322, 100 A. 552; Rollins v. Merrill, 70 N. H. 436, 48 A. 1088; Sawyer v. Banfield, 55 N. H. "A contestant of a will must have some direct legal or equitable interest in the decedent's e......
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