Weston v. Second Orthodox Congregational Church

• Decision Date: 26 June 1915
• Citation: 95 A. 146
• Parties: WESTON v. SECOND ORTHODOX CONGREGATIONAL CHURCH et al.
• Court: New Hampshire Supreme Court

95 A. 146

WESTON

v. SECOND ORTHODOX CONGREGATIONAL CHURCH et al.

Supreme Court of New Hampshire. Hillsborough.

June 26, 1915.

Transferred from Superior Court, Hillsborough County; Branch, Judge.

Bill in equity by William H. Weston, as administrator with the will annexed of Sarah A. Brown, and as executor of Webster C. Brown, against the Second Orthodox Congregational Church and others, for a construction of the will of Mrs. Brown.Case transferred from trial term on an agreed statement of facts.Case discharged.

Sarah A. Brown, wife of Webster C., died January 10, 1902.Her will was dated April 10, 1895, and was written by her husband.By the first clause she appointed him sole executor, and requested that no inventory of her real or personal estate be made, and that no sureties be required of her husband as executor.The second clause directs him to provide for perpetual care of a cemetery lot by investing a sum not exceeding $500 for that purpose.The third clause of the will is as follows:

"All the rest and residue of my real and personal property of every description that I possess I give, devise, and bequeath to my husband, Webster C. Brown, to have and to hold during his natural life, or to dispose of for his support or benefit, or for the interest of the estate, as he may deem necessary.As soon as may be after his decease, I direct, and it is my will, that all the remainder of my real and personal estate be given to the Second Orthodox Congregational Society in the city of Nashua, N. 11., for the purpose of assisting to maintain public religious worship in the Pilgrim Church, so called."

The will was proved January 20, 1902, and the husband qualified as executor.He filed an inventory, showing real estate appraised at $5,000, 15 shares of stock in local corporations appraised at $3,000 and worth approximately $4,300, one United States bond for $500, and deposits in four banks in Nashua with a face value of $964.62, which were inventoried as value unknown, the banks being then in process of liquidation.Shortly after his appointment as executor, Brown surrendered the certificates of stock and took new certificates in his own name, in one case making the transfer through a third party.After his wife's death he occupied one parcel of the real estate left by her and rented the other.He died August 19, 1910, without having settled any account as executor, leaving a will executed December 10, 1904, the ninth and last clause of which is as follows:

"All the rest and residue and remainder of my estate, real, personal, or mixed, of which I am seised or possessed, or to which I may be entitled at the time of my decease, I give, devise, and bequeath to my sister, Miss Sarah A. Brown, and to the grandchildren of Silas and Kate H. Brown."

Brown was one of the commissioners of Hillsborough county from 1886 to 1900.He and his wife lived in Nashua and were attendants upon the services of the Pilgrim Church, both before and after her will was made.They had no children or descendants, and she had no heirs so far as known.Under the residuary clause of Mrs. Brown's will, the Second Orthodox Congregational Church claims the real estate left by her and the stock for which her husband received certificates upon surrender of the shares standing in the name of his wife.Sarah A. Brown, and the grandchildren of Silas and Kate H. Brown claim the same property under the residuary clause of Webster's will.

George W. Clyde, of Nashua, for plaintiff.George B. French, of Nashua, for defendant Second Orthodox Congregational Church.

PARSONS, C. J.Mrs. Brown's will is not the product of a professional scrivener whose use of terms might be influenced by judicial decision as to their meaning.Reading it as the product of ordinary acquaintance with the English language, little difficulty is found in arriving at her intention.She intended to give her husband something more than a life estate, or the alternative clause, "or to dispose of for his support or benefit," would not have been inserted.If she had intended an absolute fee, the words descriptive of a life estate and remainder would have been omitted.Her purpose plainly was that he should make such use of the estate as he might deem necessary, and that at his death all not disposed of by him should go to the society.This is not an impossible estate.Shapleigh v. Shapleigh, 69 N. H. 577, 44 Atl. 107.The power of disposal annexed to the life estate does not necessarily enlarge it to a fee and destroy the gift in remainder, contrary to the testatrix's intention.Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23.The estate which Mrs. Brown intended her husband to have in her property being neither illegal nor impossible, her intention creates such estate irrespective of the failure...