Walker v. Hill

• Decision Date: 02 May 1905
• Citation: 60 A. 1017,73 N.H. 254
• Parties: WALKER, Ex'x, v. HILL et al. HILL et al. v. SAME.
• Court: New Hampshire Supreme Court

60 A. 1017

73 N.H. 254

WALKER, Ex'x,

v. HILL et al.

HILL et al.

v. SAME.

Supreme Court of New Hampshire. Merrimack.

May 2, 1905.

Transferred from Superior Court; Peaslee, Judge.

Bill by Mrs. Gustavus Walker, administratrix of the estate of Gustavus Walker, deceased, against one Hill and others, for construction of the deceased's will; and petition by one Hill and others against one Hill and others for appointment of a trustee under the will of deceased. Case discharged.

The first clause of the will directs the payment of debts and funeral expenses; the second bequeaths to Nancy L. Hill, a sister of the testator, the sum of $1,000 in case she should survive him; and the third devises the testator's homestead to his wife, "to have and to hold for and during her natural life, with the privilege of selling the same at any time if she deem it best, the proceeds of such sale to be invested by her, and my said wife to have the income of such investment for her own use during her natural life." The fourth clause is as follows: "I also give, bequeath, and devise to my said wife, her heirs and assigns, all the household furniture, ornaments, goods and stores belonging to me and in use for household purposes at the time of my decease, and all horses, harnesses, robes, sleighs and carriages, and stable equipments then owned by me, together with one half of all the remaining portion of my estate, both real, personal, or mixed, wherever found or located, to have and to hold to her and her heirs and assigns forever; and I do also give to my said wife the income of the remainder of my estate during her natural life." In the remaining clauses the testator directs the erection of a suitable headstone on his family burial lot, appoints his wife sole executrix, and distributes $29,100 in pecuniary legacies to the defendants, "none of which legacies, except that to Nancy L. Hill, are payable till the death of my said wife, my said wife having the income during her natural life." Nancy L. Hill died in the lifetime of the testator. His estate consisted of his residence, a block valued at $90,000, securities valued at $90,000, and the furniture and provisions in and about his house and stable. The following instructions are requested: (1) From what part of the estate are the debts, funeral expenses, expenses of administration, and cost of the headstone to be paid? (2) To whom does the income of the estate since the testator's death belong? (3) To what portion of the estate is Mrs. Walker entitled? (4) When did her title as legatee and devisee vest?

Streeter & Hollis and Sargent, Remick & Niles, for William W. Hill and others. Martin & Howe, George B. French, and James H. Morris, for Mary C. B. Walker. Drew, Jordan, Buckley & Shurtleff, for Mary W. Hill Ladd.

YOUNG, J. The clause under which Mrs. Walker takes the great bulk of the testator's property is a residuary one, so far as her administration is concerned, for he gives her "one-half of all the remaining portion of my estate, * * * and * * * the income of the remainder of my estate during her natural life." Under it she takes all the property that remains after his debts, funeral expenses, expenses of administration, and the cost of the headstone have been paid, either in fee or for life; for the legacy to his sister, Nancy L. Hill, has lapsed, and the will postpones the payment of the other legacies until after Mrs. Walker's death, so these are the only claims that are to be paid during her administration. Since these claims are to be paid out of the property she takes under this clause of the will, it is unnecessary to consider whether the bequest is general or specific, or given to her in lieu of dower.

There is no merit in the claim that the will creates a trust estate, and that a trustee should be appointed to manage it; for, notwithstanding there are some facts that, standing alone,...