55 A. 1047 | N.H. | 1903
It is apparent that the testator's purpose was (1) to provide for the comfortable support of his widow and children, and (2) to devise the remainder to others more remotely related to him. To carry out the first, and, in his view, the more urgent or important purpose, he arranged for the enjoyment of his estate by his widow and children while they all lived, by giving his widow the use and income of one third of his property and by giving to trustees the remaining two thirds to hold for the support of his children. Desiring that all his property should be devoted to the benefit of his immediate family before it or any part thereof should become the absolute property of the remaindermen, he attempted to create devises to operate (1) if the widow should die first, (2) if one of the children should die first, and (3) if both of the children should die before their mother. Upon her decease before the decease of either of the children, it is clear that the property devised to her would have passed to the trustees to hold for the benefit of the children. In other words, it would have been a devise in addition to what had already been given to them, and the entire estate would have been held by the trustees for their benefit. It is equally clear that, in case the widow survived both of the children, two thirds of the testator's property which he gave to the trustees for the children would have been held for her benefit during her life. His general intention as thus indicated was to withhold all the property from the remaindermen *205 so long as his widow or either child survived. In accordance with his intention, which the inexact and ungrammatical language of the sixth and seventh clauses of the will does not necessarily contradict, the right which Ann had to the net income of the trust property, upon her decease became the right of the widow; and upon the decease of the widow it passed to Frank, the sole surviving member of the testator's family. Any conflict there may be between the sixth and seventh clauses, when regarded as distinct and independent provisions, disappear when they are read together in the light of the testator's general purpose. "The longest liver" of the children "takes all" the interest the other had in the trust property, unless the widow is living; in which case it goes to her, and ultimately to the last survivor. Ann's right to receive a portion of the income during her life was deemed by the testator to be a right which might exist in favor of another after her decease. It is as though he had said: "I give to my daughter Ann the right to receive the benefit of so much of the income of said two thirds of my property annually as will suitably support her during her life, and upon her decease I give to Frank the right to receive what she would receive if she were living, — in other words, to receive the whole net income if his needs require it, — provided his mother is not then alive. If she is living, I give Ann's said right to her to enjoy during her life, and upon her decease Frank shall enjoy the right until his decease, when the right shall terminate, and said property shall then become the property of my nieces and nephews." It is not probable that the testator intended that that part of the trust property which produced the income used by Ann should be turned over to his nieces and nephews upon the death of his widow after her use of it, but that it should continue trust property until the decease of Frank. The interpretation of his intention above indicated is the only one consistent with his general purpose, and must prevail over the obscure and doubtful language in the will, which standing alone might be susceptible of some other meaning. If by the language of the seventh clause the testator meant that the property producing the children's income, upon the death of both should, after the widow's life estate therein, be divided between his nieces and nephews, an intention that upon the widow's death after the death of one of the children a proportional part of the property should be divided among his collateral relatives while the other child survived would be inconsistent with the provision of the sixth clause that "the longest liver takes all." No reason is apparent why he should desire that the entire trust property should be held for the benefit of a surviving child if the death of the other child occurred *206 after the death of the widow, and that only a part of it should be so held if the child's decease occurred before that of the widow. In the absence of a reason for such a distinction, and in view of his evident purpose to devote his entire estate in the first instance to the support of the members of his immediate family, it is more probable than otherwise that he intended that all his property should be held in any event for the benefit of the last surviving member of his family; and that after this purpose was fulfilled, the remainder of the one third of his estate given to the widow should become the property of her nephews and nieces, and that the other two thirds held in trust should be divided among his nephews and nieces.
As the trustees, under the second and fifth clauses of the will, are vested with a discretion as to the expenditure of the income for Frank, they cannot give him the immediate benefit of it, or pay it to him, except when his necessities and comfort, as indicated in the will, require it. Whatever is not required for this purpose and for the expenses of the trust, upon his decease must be paid over to the respective remaindermen as a part of the principal.
The question whether, if the income is not sufficient for the support of Frank, any part of the principal may be used for that purpose, is not answered at this time, since it does not appear that the condition of the estate and the needs of Frank make its solution necessary in the due administration of the trust. Application to the court may be made for advice upon this subject whenever there is occasion for it.
Case discharged.
All concurred.
