Snow v. Durgin

• Decision Date: 16 March 1900
• Citation: 47 A. 89,70 N.H. 121
• Parties: SNOW v. DURGIN et al.
• Court: New Hampshire Supreme Court

47 A. 89

70 N.H. 121

SNOW

v. DURGIN et al.

Supreme Court of New Hampshire. Carroll.

March 16, 1900.

Bill by Leslie P. Snow, trustee appointed by the will of Josiah Thurston, deceased, against Mary E. Durgin and others, for instructions in the execution of the trust. Instructions given.

Bill in equity for Instructions in the execution of a trust. Josiah Thurston died testate November 13, 1886, leaving 1 sister, 17 nephews and nieces (11 of whom were children of deceased brothers and sisters), and a large number of granduephews and grandnieces, of whom 2 were children of a deceased child of the surviving sister, 5 were children of nephews and nieces who died before the date of the will, and the others were children of surviving nephews and nieces. Sarah A. Towle, a person "brought up" by Josiah, as stated in his will, died between the date of the will and his death, leaving 1 child, who survived him. Nathaniel H. Thurston, who, as the testator states in the will, was "formerly in my family, and died in my house in April, 1875," left 3 children, who survived Josiah. Neither of the last-named persons was an heir of Josiah. He bequeathed $100 to his sister, $25 to each of his nephews and nieces, $500 to each of Thurston's children, $500 to Thurston's widow during life and then to his children, and $5,000 to Sarah A. Towle's child. He also gave $5,000 and some articles of personal property to Mrs. Towle, but after her death he revoked the legacy. He gave nothing to either of his grandnephews and grandniece. The residuary clause of the will is as follows. "As to all the rest and residue of my estate, real, personal, or mixed, wherever found or situated, it is my will that the same be sold by my executors as above provided, and the proceeds safely invested, and the interest of the same be applied by my executors, for the term of ten years, for the relief of the most destitute of my relatives, not to extend beyond the children of my brothers and sisters and their families, after which time the principal to be equally divided between them, including the children of Nathaniel H. Thurston, deceased, and the children of Sarah A. Towle." Instruction is asked in reference to the division of the residue of the estate.

Worcester, Gafney & Snow, for plaintiff and others. Foster & Hersey and John C. L. Wood, for Arthur H. Kenison and others. Josiah W. Thurston, pro se.

CHASE, J. By the terms of the will the income of the residue of the estate, for the term of 10 years, was to be applied for the relief of the most destitute of the testator's relatives, not to extend beyond the children of his brothers and sisters and their families; and then the principal was to be "equally divlded between them, including the children of Nathaniel H. Thurston, deceased, and the children of "Sarah A. Towle." In respect to the income, it has already been decided that a charitable trust was created, the beneficiaries of which were limited to such of the testator's relatives as were not more remote than nephews and nieces and their families. Gafney v. Kenison. 64 N. H. 354, 10 Atl. 706. The time for the distribution of the principal of the fund having arrived, the question arises, who are entitled to shares? This depends upon the intention of the testator, expressed by the pronoun "them" and the words following it. That this pronoun was designed to take the place of the noun "relatives," in some sense of the word, is apparent. The question is, what was the sense intended? In its broadest sense, "relatives" means all persons connected with another by blood or affinity, however remote the connection. There is, however, a limit beyond which these ties are not sufficiently strong to influence a person in. making a disposition of his property. This fact is recognized in the laws of descent and distribution by the limitation of the persons who take under them to the next of kin, if there is no child, father, mother, brother, or sister. When the testator first used the word in his will, he expressly provided that it should not extend beyond the children of his brothers and sisters and their families. It thus appears that he used it in a limited sense. The word "relatives" and the words "next of kin" have been used in wills to designate the next of kin according to the statute of distribution. Varrell v. Wendell, 20 N. H. 431; Pinkham v. Blair, 57 N. H. 226; Goodale v. Mooney, 60 N. H. 528. 536. But "relatives," or its substitute, "them," was not so used here; for it included within its meaning "the children of Nathaniel H. Thurston and the children of Sarab A. Towle,"— persons who were not next of kin. Several independent provisions of the will uniformly tend to show that the testator did not intend to include in these terms any persons whose connection with him was more remote than that of children of his nearest of kin, or those who were nearest to him by reason of association and affection. Relatives more remotely connected were not to be relieved from the income. A legacy of $25 was given to each of his nephews and nieces, but no legacy was given to any grandnephew or grandniece, although there were many of them, and some whose parents had died before the date of the will.' He "brought up" Mrs. Towle. He gave her $5,000, and her child $5,000,—much larger legacies than he gave to any of his kin. Thurston had lived in his family, and died at his house. He gave each of Thurston's children a liberal legacy. Evidently his association with these persons had been such that they were very near to him in affection, and yet in respect to them and their...