Wallace v. Brown

• Citation: 3 A.2d 95
• Parties: WALLACE v. BROWN et al.
• Decision Date: 06 December 1938
• Court: Supreme Court of New Hampshire

3 A.2d 95

WALLACE

v. BROWN et al.

Supreme Court of New Hampshire. Strafford.

Dec. 6, 1938.

Petition by Gertrude D. Wallace, executrix, opposed by Marion Brown and another, in which Gertrude D. Wallace seeks instructions in her fiduciary capacity and as a beneficiary as to her rights individually in property devised and bequeathed to her.

Petition dismissed.

Petition, for the construction of the will of Edwin S. Wallace, late of Dover. The testator gave to his daughter, Marion Brown, "the sum of five dollars and no more." To his wife, Gertrude D. Wallace, he gave the "rest, residue and remainder" of his estate, "be the same real, personal or mixed and wherever found or situate, to her and her heirs forever; provided however, that if she should again marry then and in that event all his estate then remaining shall be divided equally between" five institutions and fraternal orders, later to be referred to as "associations".

The executrix seeks instructions in her fiduciary capacity and as a beneficiary as to the rights of the said Gertrude D. Wallace individually in the property devised and bequeathed to her, and particularly whether she has the right to sell and convey the real estate and to expend both income and principal until such time as she may again marry.

Dwight Hall, of Dover, for petitioner.

No appearance for respondents.

PER CURIAM.

The executrix is entitled to no advice as to the estates and powers intended to be vested in the devisees and legatees of the residue. Bailey v. McIntire, 71 N.H. 329, 52 A. 446, Harvey v. Harvey, 73 N.H. 106, 59 A. 621. Nor is the widow, in her capacity as non-fiduciary beneficiary. Glover v. Baker, 76 N.H. 393, 83 A. 916; Ross v. Church, 77 N.H. 592, 90 A. 174; Adams v. Carrie F. Wright Hospital, 82 N. H. 260, 132 A. 525; Owen v. Busiel, 83 N. H. 345, 347, 142 A. 692, 59 A.L.R. 1103; Keene v. Union School District, 89 N.H. ——, 200 A. 514. No adverse claim appears to have been made, so this is not a proper case for amendment into a petition for a declaratory judgment. Laws 1929, c. 86. Petition dismissed.

BRANCH, J., was absent; the others concurred.