52 A. 449 | N.H. | 1902
Lead Opinion
The language of the first clause of the will presents no ambiguity. The testator, desiring to provide amply for the support of his wife, gave her an estate for life in his entire estate, with the right, if her comfortable support should require it, to use a part or all of the property for that purpose, provided she should remain unmarried. Upon the decease of the testator a life *415
estate in the Green-street house vested in her, which was liable to be defeated by her remarriage. As she did not remarry, her title to that property was not defeated; and as it was not required for the payment of the testator's debts, she was entitled during her life to its use, management, and income. The devise under the first clause was not of so much of the income as she might need, but of the entire use and income, without reservation or condition, if she remained unmarried. Her right to use the principal, or to encroach upon the remainderman's interest, was dependent upon her needs; but her right to the use of the property and to its income as a life tenant was absolute and unconditional. Burleigh v. Clough,
It is argued, however, that the provision in the third clause, "that my said wife shall have the privilege of a home there in case she desires it during her natural life," shows that the testator did not understand that he had already given her a life estate in the same property. But he may have desired to provide a home for her in the event of her remarriage, when her estate as life tenant would terminate and Henry's right to the exclusive occupation as owner of the fee would begin; and to provide for that contingency he may have made the provision above quoted. Such a construction would avoid the conflict suggested and give effect to all parts of the will. Hall v. Hall,
As the widow had a life estate in the house in question, Henry's *416 occupation of it, if rightful, was authorized by her, not as one of the executors, but as a devisee under the will; and if he is chargeable with the rent for such occupation, it is plain he is not so chargeable as an executor of his father's estate. As a tenant, he may be under obligation to account for the rent of the Green-street house to the administrator of his mother's estate, but not to his father's estate, which has no reversionary interest in the income. As the mother's estate is not represented in this proceeding, the question of Henry's liability to her estate for the rent cannot now be decided. Not being chargeable with the rent of the house as executor, he cannot be credited in that capacity with money expended for taxes, repairs, etc. These are matters to be determined on an accounting with his mother's estate.
In the third case Ellen asks for a construction of the third clause of the will, in which Henry is required to furnish her a home in the Green-street house "in case she remains single and desires to have a home there." This right or privilege is unlimited as to duration, provided she remains single. The absence of any language in the will indicating that the testator intended to give Ellen a right to a home for a less term than her life, is evidence that he had no such intention, which is not overcome by a consideration of other competent evidence bearing upon the question.
It is also necessary to decide what meaning the testator attached to the word "home." Does it mean merely a place for shelter, and if so, in what part of the house is it to be located and of how many rooms is it to consist? Or does it include the right of the daughter to occupy the entire house as a member of Henry's family and to be supported at his table? if the latter construction is adopted, it must be assumed that the testator intended to impose a duty upon Henry, the performance of which might, and probably would, entail expenses upon him greater than the value of the house itself. As its value is stated to be $3,500, and as it is chargeable with the payment of $1,000 to the estate, it is not probable that the testator also intended to charge the support of his daughter upon Henry during her life. At the death of the testator she was about twenty-nine years of age, and it is not difficult to demonstrate that the present worth of the devise to Henry, if charged with the support of his sister so long as she might be expected to live, would be of little or no value. Without other evidence than what is furnished by the case, it is unreasonable to find that the testator intended such a result. It is presumed that he intended some pecuniary benefit to accrue to his son from the provisions of his will.
The provision for a home for the daughter in the Green-street *417 house was intended to afford her such reasonable accommodations for a home as she might desire to enjoy there in connection with, but not as a member of, Henry's family. Gibson v. Taylor, 6 Gray 310. What part of the house she may occupy alone, and what part jointly with Henry, are questions of reasonable user, to be determined at the trial term in view of all the circumstances.
In consequence of the foregoing views the decree of the superior court is vacated.
Case discharged.
All concurred.
After the filing of the opinion in the original case the appellants obtained an amendment of the case by adding the following facts: The executor's account shows that all the income and more than $1,000 of the principal of the estate were expended for the support of the widow. This sum was made up from the proceeds of the sale of real estate, and sums advanced by Henry out of his own funds for which he charged the estate in the account. Before the trial in the superior court it was agreed that the expenditures were reasonably made for the support of the widow, and that they should be allowed. If Henry had paid a reasonable rent to his mother for the use of the Green-street house, the necessity for an expenditure of an equal amount of the principal of the estate for her support would have been avoided. She managed the property while she lived. Upon the filing of this amendment the appellants moved for a rehearing.
Addendum
It has been decided that the devise to the widow of the use and income of all the testator's estate during her life vested in her an absolute life estate in the Green-street house. It follows necessarily that she had the right, not as executrix, but in her private capacity, to dispose of the occupation of the house as she saw fit, as against her co-executor; that is, to rent it to such parties and at such rental as might be agreeable to her, or not to rent it at all. As a devisee, she was not bound to rent it at a reasonable rent. She did not accept the estate upon the condition or covenant that she would obtain a reasonable income from the property for her support, before resorting to the principal for that purpose. Nor did her right to encroach upon the principal of the estate depend upon her using all means to derive a large income *418 from the property in her possession, or upon her exercise of expert business ability in renting the Green-street house.
The entire estate passed to her private possession and control, which she was entitled to exercise during her life. It is certain that her co-executor, Henry, had no right to interfere with her management of the property. As executor, he could not have prevented her from renting the house to A for a nominal rent, or have interfered in any way with the trade between her and A, on the ground that he was entirely irresponsible, or on any other ground. The title to the property came to her from the testator; it did not vest in the executors, and in that capacity they had no control of it. If she had committed waste upon the property, the remainderman, but not her co-executor, would have had ground for complaint.
Having, therefore, the undoubted right to rent the property to A from whom she received no rent, how could Henry as executor be charged with a rental which the court might find to be reasonable? If this means of her support failed, temporarily or permanently, she was entitled to use enough of the principal to relieve her wants. But that would not make her co-executor liable for so much of the principal used by her as would equal a reasonable rental of the Green-street house. If as executor it had been his duty to rent the house, and on account of his breach of trust no rent had been realized, he might be chargeable with the amount of principal used by her on that account. Unless he is guilty of some breach of trust in his capacity as executor, it is not perceived upon what principle he would be bound, in the settlement of his account, to charge himself with any part of the principal which she deemed it necessary to use for her comfort.
Generally, an executor or administrator is authorized to receive the rents and profits of the real estate of the testator or intestate only in case the estate is insolvent. Where a testator provided in his will that after the payment of debts and legacies the residue of his real estate should be sold by his executor and the proceeds thereof be equally divided among his children, and there was sufficient personal property to pay debts, legacies, and expenses of administration, the estate not being administered in the insolvent course and the executor never having sold any portion of the real estate, it was held that the sureties in such executor's bond could not be holden to pay rents and profits of the real estate of the testator. Gregg v. Currier,
But it is said that if Henry had paid a reasonable sum as rent to his mother, there would have been no necessity for her using an equal amount of the principal, and that therefore he must account to his father's estate for that sum, as so much of the principal misappropriated by him as executor. This argument assumes as its basis that he held the entire estate after the payment of debts and expenses of administration as executor, coupled with a trust to so manage, invest, and control the property, as to produce from it a reasonable income for the support of the widow. In other words, it imposes upon him, as executor of his father's estate, duties which he could only perform as a trustee for the legatees under the will. He was made simply a bare executor without power, after the payment of debts, during the life of the widow. The title to the real estate vested upon the decease of the testator in the widow for life, with remainder to the residuary legatees. What "use" she should make of the real estate under the will, what "income" she should derive therefrom, whether reasonable or otherwise, and when such "use and income" should be deemed insufficient for her "comfortable support," were questions not left to the determination of Henry in either his official or private capacity. Whether the residuary legatees might have interfered to prevent her from squandering or misappropriating the principal, or whether they may not now have some remedy upon that ground against her estate (Healey v. Toppan,
Henry is entitled to reimbursement for money which he advanced to her for her support from his private funds if the same was reasonably necessary for her support. The burden was upon him to show that fact to entitle him to credit on that account. Furnishing her with money which was not necessary for her support, would not create a valid claim against Charles' estate, though it might constitute a debt against her estate. But it appears from the case that the parties agreed that the expenditures were reasonably made for her support. If this agreement relates to Henry's private claim, and is not modified or cancelled for sufficient cause shown upon a further hearing in the trial court, he will be entitled to credit therefor. If he is owing his mother's estate for the rent of the Green-street house, her estate is entitled to recover it; and if the fact is that she was not warranted in her use and appropriation of the principal, the residuary legatees may obtain relief in an action against her estate.
If Henry had agreed with his mother to pay to his father's estate so much of what might be deemed the reasonable rent of the house occupied by him as would equal the amount of principal used by her, it might be his duty to account for the rent in this proceeding. But there is no evidence in this case showing what the arrangement was between them in regard to the rent; and to charge Henry officially with a reasonable rental not exceeding $1,000 (the amount of the principal used by his mother) would be to judicially make a new contract for the parties, in order to charge Henry with funds or with the real estate *421 belonging to his father's estate, of which he had no control as executor or otherwise, and of which the widow as life tenant had the entire management, accountable only to the residuary legatees. The defendants' contention rests on the false assumption that it was the duty of Henry as executor to manage the property of the estate, the uncontrolled use and income of which, so far as he was concerned, was vested by the testator's will in the widow, and to restrain within reasonable limits her discretion in the use of the principal. The will furnishes no evidence that the testator intended to make such a disposition of his estate.
As, therefore, what Henry advanced for the support of his mother appears to be a proper charge upon the principal, he should be credited with the same; and as he is not accountable as executor for the rent of the Green-street house, the order charging him with a reasonable sum as rent is reversed.
Motion for rehearing denied.
All concurred.
