Stratton v. Stratton

• Decision Date: 31 July 1896
• Citation: 44 A. 699,68 N.H. 582
• Parties: STRATTON et al. v. STRATTON et al.
• Court: New Hampshire Supreme Court

44 A. 699

68 N.H. 582

STRATTON et al.

v. STRATTON et al.

Supreme Court of New Hampshire. Cheshire.

July 31, 1896.

Appeal from probate court, Cheshire county.

Bill by Stratton, executor, and others, against Stratton and others, for the construction of the will of Isaac Stratton, deceased. From a decree of the probate court, complainants appeal. Case discharged.

Probate appeal from a decree of distribution upon the estate of Isaac Stratton. Trial by the court. The parties agreed that the case should be considered as a bill in equity for the construction of the will and codicil thereto of said Stratton. The material parts thereof are as follows: "Third. I give and bequeath unto my granddaughter, Bessie K. Stratton, ten dollars. This, with the property that I gave her deceased father, that will come into her possession at my decease, will make her share of my property. After paying off the legacies to my grandchildren, funeral charges, and debts, I will and bequeath the remaining part of property as follows: (1) I give and bequeath unto my beloved wife, Lucy E. Stratton, one-half of my household furniture, and my gold watch and chain. I also give and bequeath unto her one-third of my real estate and personal property. I will and decree her the right privilege of taking as a part of her share of her dower my house in Keene, No. 28 Court street, for ($2,500) twenty-five hundred dollars, including all the gas fixtures and lighting apparatus, furnace, and stoves, and water apparatus belonging to the house. The above bequest is to be her dower. 2) I give and bequeath unto my son, Menzies E. Stratton, one-third of my real estate and personal property, excepting my household furniture, music box, and watch. Whereas I lent him $300 December, 1881, and his bank note of two hundred dollars that I signed, dated September, 1882, I paid for him, I therefore decree that ($500) five hundred dollars may be taken from his legacy, with no interest. (3) I give and bequeath unto my daughter, Josephine W. Richardson, one-half of my household furniture, and music box. I also give and bequeath unto her the use and income of one-third of my real estate and personal property during her life, since she is well off, and has no issue. I will and decree the same property unto my grandson, Edwin W. I. Stratton, to come into possession of it after the decease of my daughter. I decree that there shall be no bondsmen required of my daughter for the safe-keeping of the property willed to my grandson, and, if she thinks it expedient, she may pay him such portions of his legacy, while she is living, as he may happen to need, and take his receipt for the same. If my grandson decease before my daughter, without wife or issue, then at the decease of my daughter it shall revert to my legal heirs, including my wife, Lucy, as one equal with them." The codicil is as follows: "Know all men by these presents, that I, Isaac Stratton, of the town of Keene, in the county of Cheshire and state of New Hampshire, considering the uncertainty of this life, and being of sound mind and memory, do make and declare and publish this, my last codicil to my foregoing will, made the 24th day of January, 1891. Whereas, my daughter, Josephine W. Richardson, has deceased since the date of my will, I hereby revoke that part of my will to my deceased daughter, and give and bequeath unto my wife, Lucy, the same household furniture that I willed to my deceased daughter. I also will and decree that my wife, Lucy, shall take the place in relation to my grandson's legacy that is stipulated in my foregoing will to my daughter, Josephine. Whereas, my daughter, Josephine W. Richardson, left considerable property, and if I decease before her estate is settled, and in the end the law gives me her property, I will and bequeath the same in equal parts to my wife, Lucy, and my son, Menzies Stratton, and my grandson, Edwin W. I. Stratton, and my granddaughter, Bessie Kendall Stratton; her last year's school expenses to be deducted from her share, because it is expected that Josephine W. Richardson's estate will have to pay the bill." The testator's daughter, Josephine W. Richardson, mentioned in the will and the codicil, died in Chicago, July 24, 1891, leaving property of the estimated value of from forty to fifty thousand dollars. She left a husband, Lloyd D. Richardson, surviving her, but no lineal descendants. There was a dispute as to her domicile. The husband claimed it was in Illinois, and that under the laws of that state he would inherit all her estate, to the exclusion of the father. The father claimed it was in Arkansas, and that under the laws of that state he would inherit all her estate, to the exclusion of the husband. The codicil was made by the testator before the estate of his daughter, Josephine W. Richardson, was settled. March 20, 1893, subsequent to the making of the codicil, and before the testator's death, the testator made a settlement with Lloyd D. Richardson, the husband of Josephine W., by which he received the sum of $20,900 in four promissory notes signed by one Reynolds, and indorsed by Richardson, for his claim as heir to his daughter's estate, and assigned his claim to Richardson. Notice of the assignment was given by Isaac Stratton to the administrator of Josephine W. Richardson's estate. The probate court ordered and decreed that the $20,000 and interest, received as before stated under the agreement with Richardson, be distributed among and paid to the legatees named in the codicil of the will, namely, Lucy E. Stratton, Menzies E. Stratton, Edwin W. I. Stratton, and Bessie Kendall Stratton. The appellants claim that this money should be distributed according to the terms of the will, and not according to the codicil, and appeal from the decree of the judge of probate.

Silas Hardy and Eleazer L. Waterman, for appellants.

Charles H. Hersey and Batchelder & Faulkner, for appellees.

PARSONS, J. The agreement of the parties that the present proceeding, which is an appeal from a decree for final distribution of the estate, determining who are entitled to take as legatees under the will and codicil, shall be treated as a bill in equity by the executors for a construction of the will and codicil, renders it unnecessary to consider...