Shapleigh v. Shapleigh

• Decision Date: 28 July 1899
• Citation: 69 N.H. 577,44 A. 107
• Parties: SHAPLEIGH v. SHAPLEIGH et al.
• Court: New Hampshire Supreme Court

44 A. 107

69 N.H. 577

SHAPLEIGH

v. SHAPLEIGH et al.

Supreme Court of New Hampshire. Strafford.

July 28, 1899.

Bill by Sarah A. Shapleigh, executrix, against James H. Shapleigh and others. Case discharged.

Bill in equity for the construction of a will. Pacts agreed. Richard W. Shapleigh, of Somersworth, died May 24, 1897, aged 35 years, and unmarried, leaving as next of kin his mother, and a brother of the half blood, James H. Shapleigh. He left a will, which, besides bequeathing his watch and sundry sums of money, together amounting to $300, contains the following provisions: "Sixth. I give and bequeath to Marion T. Shapleigh, widow of my deceased brother, Fred R. Shapleigh, the proportion coming to me as heir of said Fred R. Shapleigh in his estate." "Ninth. Subject to and upon the conditions hereinafter named, I give and bequeath to the trustees, or to the corporation of Olivet College, Olivet, Michigan, the sum of one thousand dollars, for the purpose of founding a scholarship in said college, or to found a prize fund in the scientific department of said college, to correspond with the Hewitt prize, and to be known as the 'Richard W. Shapleigh Fund,' and for no other purpose whatsoever. This bequest is made subject to the following condition: If, in the judgment of my executrix, hereinafter named, the condition of my estate will not warrant the giving of said bequest to said college, then the same shall be void. Tenth. All the rest, residue, and remainder of my estate, real, personal, and mixed, wherever found and however situate, I give, bequeath, and advise to my mother, Sarah A. Shapleigh, for and during her natural life, if she shall survive me, with the right and power to dispose of all and every portion thereof in her lifetime, if she shall find the same necessary to her comfortable support and maintenance, or shall desire so to do; hereby granting to the said Sarah A. Shapleigh the right to sell and convey by absolute deed any and all of my said estate, without license or orders from the probate court, and the right to manage the same as if this gift were entirely absolute, and the right to spend the whole income of the same and the principal, if she finds it necessary to do so for her comfort or desires so to do; my will and wish being that she shall fully use, have, and enjoy said estate as if it were her own absolutely during her lifetime. Eleventh. All of my estate remaining at the decease of said Sarah A. Shapleigh, whether of principal or of accrued income, in whatever form the same may be, I give, bequeath, and devise to the said James H. Shapleigh, if he is then living, and to his heirs and assigns, forever; and, in case the said James H. Shapleigh shall not be living at the decease of the said Sarah A. Shapleigh, then I give and bequeath the same to the said Lizzie A. Shapleigh, her heirs and assigns, forever." He named his mother as executrix of the will, and directed that she should not be required to give a bond, file an inventory of the estate, or "account therefor to the probate court." Richard resided with his mother at the time of his death, and for several years prior thereto, and paid a certain proportion of the household expenses. He had some knowledge of legal terms, having studied law for a short time. His mother was 74 years old, and in good health. The portion of his estate that will pass by the tenth and eleventh clauses of the will amounts to about $18,000. Sarah has $5,000 that was bequeathed to her by her late husband, and is also entitled to the income of some $4,000 or $5,000 more under his will. Fred R. Shapleigh, also a resident of Somersworth, died April 1, 1894, leaving a widow, Marion T. Shapleigh, and no children. By his will, made prior to his marriage, he gave the residue of his estate, after the payment of his debts, sundry legacies, etc., to his brother, said Richard, who was nominated and appointed executor of the will. His estate consisted of personal property of the value of $15,000, and real estate of the value of $1,400. One half of the personal estate left after the payment of debts has been paid and transferred to the widow. At some time before Richard's will was made, there was an understanding between him and James that the other half of Fred's personal estate should be equally divided between Sarah, Richard, and James. Sarah, the executrix of Richard's will, is the plaintiff, and prays for a construction of the sixth and tenth clauses thereof. The defendants are James, Marion, and Lizzie, and are all the other parties interested in such construction.

William F. Russell and John S. H. Frink, for plaintiff.

Dwight Hall and Edwin G. Eastman, for defendants.

CHASE, J. 1. What, if anything, is Marion entitled to under the sixth clause of Richard's will? Strictly speaking, there was nothing coming to Richard as an heir of Fred. The only way in which he...