Sylvester v. Newhall

• Decision Date: 02 January 1952
• Citation: 97 N.H. 267,85 A.2d 378
• Parties: SYLVESTER v. NEWHALL et al.
• Court: New Hampshire Supreme Court

Page 378

85 A.2d 378

97 N.H. 267

SYLVESTER v. NEWHALL et al.

Supreme Court of New Hampshire.

Jan. 2, 1952.

Wyman, Starr, Booth, Wadleigh & Langdell, Manchester (Louis E. Wyman, Manchester, orally), for the appellee Mary Carlyle Fitzgerald.

Nutter, McClennen & Fish and Robert W. Meserve and Harrison F. Lyman, Jr., all of Boston, Mass. and Eliot U. Wyman, Wolfeboro, (Meserve orally) for the appellee Charles B. Newhall, Executor.

Joseph A. Locke, Boston, Mass., McLane, Davis, Carleton & Graf and Stanley M. Brown, all of Manchester (Brown orally), for the appellant Joseph S. Sylvester, Jr.

DUNCAN, Justice.

This probate appeal does not bring in question the requirement of the probate decree that one-half of the personal estate of Lucy S. Fitzgerald be distributed to trustees named in her will. Article Fourth of the will provides for division by the trustees of one-half of the residue into 'as many equal shares as there are children of mine living at my death and children of mine then deceased leaving issue then living' and it directs that each share so established shall be administered for the benefit of a child of the testatrix, or for the issue of any deceased child. It is recognized by the appellant that the testatrix intended Mary Carlyle Fitzgerald to take as one of her children within the meaning of this Article and that she is in fact the only person entitled to the benefit of the portion of the residue thus placed in trust.

The controversy relates to the rights of Mary Carlyle Fitzgerald in the other half of the residue, bequeathed in Article Third of the will 'to my issue living at my death.' The words 'my issue' are also used in Article Fourth in providing certain contingent remainder interests in the trust shares. It is the position of the appellant that the will construed in the light of surrounding circumstances indicates an intention on the part of the testatrix that Mary Carlyle Fitzgerald should not take as her 'issue.' The appellees contend that the testatrix intended that she should.

The words used in the will will be given their ordinary meaning, unless it appears that the testatrix intended otherwise. Souhegan National Bank v. Kenison, 92 N.H. 117, 119, 26 A.2d 26; McAllister v. Hayes, 76 N.H. 108, 79 A. 726. The question is whether by using the words 'child' or 'children of mine' in certain provisions of the will, and the words 'my issue' or 'issue of mine' in certain other provisions the testatrix intended to include her stepdaughter in the one class, but not in the other. It is clear that but for the provision of Article Second of the will, Mary Carlyle Fitzgerald would not come within either class. The word 'child' ordinarily means a son or a daughter; a descendant in the first degree. Webster's New Int. Dict. (2d ed.). The word 'issue' is not ordinarily the equivalent of the word 'child' or 'children.' In its ordinary meaning it is 'descriptive of the testator's lineal descendants.' Petition of Wolcott, 95 N.H. 23, 25, 56 A.2d 641, 642, 1 A.L.R.2d 1323. See also, Morse v. Osborne, 75 N.H. 487, 488, 77 A. 403, 30 L.R.A.,N.S., 914; Kimball v. Penhallow, 60 N.H. 448, 451. The Legislature has provided that in the construction of statutes unless the context requires otherwise, R.L., c. 7, § 1, 'The word 'issue,' as applied to the descent of estates, shall include all the lawful lineal descendants of the ancestor', § 20, which again is the normal meaning of the word. Within this meaning, children are necessarily issue; but issue are not necessarily children for grandchildren and descendants further removed may likewise be issue. Yet the word 'issue' may be so used according to its context, as to be equivalent to the word 'children.' See Central Hanover Bank & Trust Co. v. Helme, 121 N.J.Eq. 406, 417, 190 A. 53; Boston Safe Deposit & Trust Co. v. Parle, 307 Mass. 255, 259, 260, 29 N.E.2d 977.

Article Second of the will provides as follows: 'I direct that this my will shall be construed and shall take effect for all purposes and in all respects as if Mary Carlyle Fitzgerald, daughter of my husband William F. Fitzgerald, Jr., were a natural child of mine.' The appellant would accord only a limited effect to this provision. He concedes that where children are mentioned in the will, the testatrix intended that her stepdaughter should take; but he asserts that Mary was not intended to participate in bequests in favor of the testatrix' 'issue' because she was not in fact a 'lawful lineal descendant' of the testatrix, and the testatrix did not expressly provide that the will should be construed and take effect as if Mary were 'issue of mine.' The Trial Court in effect so held, ruling that 'the word 'issue' * * * should be given its ordinary and legal meaning * * * there being an absence of a contrary intention appearing in the said last will * * * clearly or by necessary implication.' The Court likewise ruled 'that Mary Carlyle Fitzgerald is not 'issue' of the testatrix as contemplated by the provisions of Article Third, Section 1 of the * * * will.'

The appellant argues at the outset that the ruling last quoted is a 'conclusion of fact' which is conclusive in this court if there is evidence to support it. We do not so understand the law of this jurisdiction. It is true that construction of the will is governed by the intention of the testatrix, and that this intention is a question of fact, Jones v. Bennett, 78 N.H. 224, 229, 99 A. 18; Osgood v. Vivada, 94 N.H. 222, 50 A.2d 227, which was submitted for decision to the court below. While the findings of that court with respect to subsidiary questions of fact involved in the establishment of the surrounding circumstances are binding in this court if supported by competent evidence, determination of the ultimate fact of the intent of the testrix, rests with the law court. It was so held in Pettee v. Omega Chapter, 86 N.H. 419, 428, 170 A. 1, 171 A. 441, where the question received careful consideration. 'It will not be denied that the ascertainment of the existence of surrounding circumstances is purely a fact-finding process, and of a nature to be classed with such issues in general. * * * [It] is clearly and appropriately a function of the court, to which the determination of issues of fact is generally committed. * * * Although [the question of intention is] in a sense a question of fact, its ultimate decision rests with the law court. * * * This is the generally recognized rule. 'The construction of all written instruments belongs to the Court. * * *' 4 Wig.Ev. (1st Ed.) § 2556.' Pettee v. Omega Chapter, supra, 86 N.H. 427, 428, 170 A. 5. See also, State v. Manchester & L. Railroad, 70 N.H. 421, 433, 434, 48 A. 1103; Emery v. Dana, 76 N.H. 483, 486, 84 A. 976; Hogan v. Lebel, 95 N.H. 95, 58 A.2d 321. The ruling that Mary Carlyle Fitzgerald is not 'issue' within the meaning of Article Third, Section 1, whether a 'conclusion of fact' or a mixed finding of fact and ruling of law, is a determination of the ultimate fact of intention, the final ascertainment of which is for this court.

With the interpretation given to the will by the Trial Court, we are unable to agree. Granting that 'issue' in its ordinary sense means what the statute provides it shall mean in statutory construction, its meaning in construction of the testatrix' will must be governed by her disclosed intention. That intention is first disclosed in the provisions of Article Second quoted above. It is to be noted that those provisions do not purport to establish a definition of the words 'child' or 'children' when used in the will, so as to include Mary Carlyle Fitzgerald, but rather establish an arbitrary hypothesis upon the basis of which the will 'shall be construed and shall take effect for all purposes and in all respects.' The pervasive hypothesis thus established is that Mary shall be considered 'a natural child of the testatrix.' It follows that she intended in the determination of Mary's rights under the will Mary should be considered as if she were a true child of the testatrix and take as such wherever a 'natural child' would take. Cf. Morse v. Osborne, 75 N.H. 487, 488, 491, 77 A. 403, 30 L.R.A.,N.S., 914; Young v. Bridges, 86 N.H. 135, 140, 165 A. 272. So far as the ordinary meaning of any words of the will must be varied to accomplish their purpose the testatrix has directed that this shall be done. It is her direction not only that the word 'child' shall be interpreted to include Mary, but also that any other words of the will shall be interpreted and 'take effect' as if Mary were her child. The will is to be so construed 'for all purposes and in all respects.' The article discloses no purpose to vary the meaning of any particular language used in the will but rather to insure that Mary shall have under the will all rights which a true daughter would take.

Thus interpreting the provisions of Article Second, we proceed to consideration of the dispositive provisions of the will. Passing for the time being the disputed provisions of Article Third, Section 1, which by themselves give no color to the testatrix' use of the word 'issue,' we turn to the provisions of Article Fourth establishing a trust fund to be divided into shares for the benefit of each of the 'children of mine living at my death,' and of 'the issue of [each] deceased child of mine.' Because of the provisions of Article Second the appellant concedes that Mary Carlyle Fitzgerald is entitled to the benefit of the trust estate as a 'child' of the testatrix and the only 'child' living at her death. As to such shares for the benefit of children Article Fourth provides, with respect to income, that a child shall be entitled to receive the net income quarterly, and so much of the principal as the trustees shall deem necessary or proper in order to provide suitable maintenance and support, and suitable care in times of illness, both to the child and 'any issue of such child. * * * properly...