54 A.2d 161 | N.H. | 1947
With the Court's rulings of law we cannot agree. It appears that the words, "or such other classification of annuity they deem best for her benefit" clearly authorize the executors within their discretion to invest in an annuity which will accomplish the precise purposes which the Court has found the testator intended of not conveying an estate in fee to the plaintiff, and of providing her with a regular income for her lifetime. The underlying intent of the testator, reading the will as a whole in the light of the situation of the parties, together with his knowledge of his daughter's habits, and the Trial Court's findings, appear to have been to protect his daughter from her own improvidence through the discretion invested in the executors. Eaton v. Eaton,
The law is too well established in this jurisdiction to require extended citation that the intention of the testator is the sovereign guide in the interpretation of a will, and that this intention being ascertained the court must enforce it. Peaslee v. Rounds,
That the English rule is not always approved is shown by the example of New York State, where the Legislature passed a special statute to avoid the consequences of its courts following this doctrine.
But there seems no need to invoke a legislative act here to accomplish the desired result. Our courts are not disposed to follow arbitrary rules, English or otherwise, at what appears to be the expense of justice.
The intention of the testator being established in this case there appears to be nothing to prevent its being carried out. If it may be deemed applicable the opinion in Eastman v. Bank,
A decree should be entered dismissing the plaintiff's bill and ordering the defendant executors to invest the plaintiff's share, as determined upon final settlement, in such classification of annuity as they deem best, for the plaintiffs benefit.
Case discharged.
All concurred.