West v. Chase

• Decision Date: 07 April 1942
• Citation: 25 A.2d 688
• Parties: WEST et al. v. CHASE.
• Court: New Hampshire Supreme Court

25 A.2d 688

WEST et al.

v. CHASE.

Supreme Court of New Hampshire. Rockingham.

April 7, 1942.

Transferred from Superior Court, Rockingham County; Young, Judge.

Proceedings by Elizabeth C. West, and another, against Oliver B. Chase, individually and as executor under the will of Anna Belle Carter, deceased, for a judgment as to the construction of a will. The question whether plaintiffs and others were remaindermen under the will was transferred from the trial term without a ruling.

Judgment for defendant.

Petition, praying the judgment of the Superior Court as to the construction of the will of Mary H. Carter. By the terms of this will the testatrix devised her homestead farm in Exeter to her daughters Anna Belle Carter and May Lizzie Carter "for their use and benefit during their lives" subject to certain so-called conditions expressed in the form of a wish that these daughters together with their sister, Ada Ora Elliott, would "continue to live together" on the farm in the same way in which they had been living and that certain other members of the Carter family should "have the right and privilege of a home" there, "the management and authority," however, "to be in the said Anna Belle Carter and May Lizzie Carter."

The will contained a further clause providing for the sale of the farm for the benefit of Anna Belle and May Lizzie Carter if their support and comfortable maintenance required it. All the rest and residue of the estate of the testatrix was bequeathed and devised to "Anna Belle and May Lizzie Carter, to them and their heirs forever."

To her daughter Georgia Chase the testatrix gave the nominal sum of one dollar explaining that she did this because she realized that Georgia was "comfortably situated" and "well provided for."

May Lizzie Carter died on April 5, 1936, leaving all her estate to Anna Belle Carter. The latter died on July 17, 1940. By the terms of her will all her real estate was devised to the defendant Oliver B. Chase, and the rest, residue and remainder of her estate was bequeathed to Oliver B. Chase, Jessie B. Chase, Elizabeth C. West, and Ruth M. Abbott, "share and share alike." Oliver B. Chase was nominated executor. He has qualified as such and has included the real estate in question in the inventory filed in the Probate Court. The plaintiffs, Elizabeth C. West and Ruth M. Abbott, claiming an interest in this real estate, have brought the present proceeding against him both in his capacity as executor and individually.

The question whether the plaintiffs together with Oliver B. Chase and Jessie B. Chase, the sole surviving heirs of Mary H. Carter, "are remaindermen" under the will of Mary H. Carter was transferred by Young, C. J., without a ruling.

William H. Sleeper, of Exeter, for the plaintiffs.

Batchelder & Wheeler, of Exeter, for the defendant.

MARBLE, Justice.

Since the plaintiffs are not fiduciaries, they cannot maintain a bill for direction and advice. Owen v. Busiel, 83 N.H. 345, 347, 142 A. 692, 59 A.L.R. 1103 and cases cited. But, although the present proceeding is entitled a petition for the construction of a will, it appears to seek the rendition of a declaratory judgment. It is therefore deemed to have been instituted under the authority of chapter 86 of the Laws of 1929 to determine the title to real estate.

Oliver B. Chase as executor is not properly a party to the proceeding since he has no interest in the real estate in his representative capacity. Either the title to the homestead farm vested in him individually as devisee under the will of Anna Belle Carter or, if Anna Belle and May Lizzie possessed only a life estate in the property, the remainder-interest vested in the heirs of Mary H. Carter at the date of her death subject to the life estate. That the remainder was not intended to so vest seems...