Romerey v. Bros.

• Decision Date: 03 November 1948
• Docket Number: No. 3762.,3762.
• Citation: 61 A.2d 793
• Parties: ROMEREY v. BROTHERS et al.
• Court: New Hampshire Supreme Court

61 A.2d 793

ROMEREY

v.BROTHERS et al.

No. 3762.

Supreme Court of New Hampshire.

Nov. 3, 1948.

Transferred from Superior Court, Rockingham County; Wescott, Judge.

Petition by Kenneth F. Romprey, trustee under the will of George E. Seavey, deceased, against Sarah J. Brothers and others for instructions as to distribution of corpus of trust fund established under decedent's will. Case transferred from trial term.

Case discharged.

Petition for advice brought by the plaintiff as trustee under the will of George E. Seavey asking for instructions as to the distribution of the corpus of a trust fund established under the fifth clause of the will the material portions of which read as follows:

‘Second. I give and bequeath to my neice Nancy J. Wilson the sum of one thousand dollars, to my other neices Alice Peabody, Annie Bushway and Josie Martin the sum of five hundred dollars each and to my nephew Lewis B. Seavey the sum of three thousand dollars.’

‘Fifth. From and after the termination of the life estate of my said wife Mary B. Seavey, I give, bequeath and devise the remainder of my estate to William L. Emerson of Windham, N. H. and Benjamin T. Bartlett of Derry, N. H. in trust never-theless for my said neices Nancy J. Wilson, Alice Peabody, Annie Bushway and Josie Martin and for my nephew Lewis B. Seavey, the income thereof to be paid to them, or per stirpes to the heirs of such of them as may decease, each year in equal shares during the natural life of said neices and nephew or the survivor of them.

‘And I do hereby empower said trustees to sell or dispose of and convey any or all of my remaining real estate to public auction or private sale upon such terms and in such manner as to them shall seem best for the proper execution of said trust.

‘Sixth. Said trust shall terminate upon the decease of my last surviving neice or nephew and from and after the termination of said trust I give bequeath and devise the remainder of my said estate to the legal heirs of Nancy J. Wilson, Alice Peabody, Annie Bushway, Josie Martin and Lewis B. Seavey in equal shares, to them and their heirs forever.’

At the time the will was signed, on June 1, 1910, the testator in addition to the named nieces had another, Sarah J. Brothers, living. She was then about thirty-two years old and younger than any of the other nieces by some six years. The date of birth of the nephew Lewis is unknown but the probabilities are that he was born before 1886. Upon the date of the will Lewis was unmarried, Nancy Wilson was fifty-eight and childless, Annie (Peabody) Bushway was married and had eight children living, Jessie Peabody, known to the testator as Josie Martin, was married and had one child and Alice was unmarried and childless.

Lewis, the last survivor of the class named in the will died childless March 26, 1947. At that time there were living eleven direct descendents of two of the named nieces, viz.: Earl Martin, son of Josie; Clara Jarrett, Agnes Gallien, Annie E. Bushway, and Alice Saunders, daughters of Annie Bushway; Charles W. Saunders, Jr., John P. Saunders, Thomas H. Saunders and Paula Ann Saunders, all being the children, the latter three minors, of Hazel Bushway, deceased daughter of Annie Peabody; Eugene Bushway and Dorothy Normandeau, children of Ida also a deceased daughter of Annie Bushway. In addition to these, Sarah J. Brothers and Earl Hight, husband of Amy Bushway, deceased daughter of Annie Bushway, were still living.

Earl Martin claims one-half the corpus on the theory that the words ‘legal heirs' meant only children of the named nieces and nephew, and that the division should be per stirpes. He would therefore divide the estate one-half to himself and the other half to the children of Annie Bushway regardless of when the remainder vested. The heirs of Annie claim that they are entitled to take per capita as members of the class and that the remainder did not vest until the death of Lewis. Sarah Brothers contends that she is entitled to two-fifths of the estate since she is first cousin and only heir of Lewis and of Nancy. She maintains that the division should be per stirpes and that the legal heirs should be determined upon the death of Lewis. Clara Jarrett, Agnes Gallien, Annie E. Bushway and Alice Saunders claim that the remainder vested upon the death of Lewis and should be divided in seven shares, they each taking one, the children of Hazel Saunders dividing another, the children of Ida Bushway a sixth share and Earl Martin the seventh. The children of Hazel Saunders, while agreeing that the heirs are to be determined upon the death of Lewis, contend that the estate should be divided into eleven equal shares on the ground that the testator intended a per capita distribution. All the litigating parties with the exception of Sarah Brothers claim that she should receive nothing as such was the testator's intent. Further facts appear in the opinion. Transferred by Wescott, J. Green, Green & Romprey, of Manchester, for trustee.

John W. Perkins and Everett P. Holland, both of Exeter, for Earl A. Martin.

Frederick J. Grady, of Derry, for Sarah J. Brothers.

J. Morton Rosenblum, of Manchester, guardian ad litem for John P. Saunders, Thomas...