Kimball v. Bible Society

23 A. 83 | N.H. | 1889

Lead Opinion

By his will Mr. Richardson gave his wife all his "personal and real estate during her natural life, to be used and managed by her as she shall see fit." Out of "whatever may remain of my property after her decease," he gave two legacies "Of the balance" he gave one half to the New Hampshire Bible Society, and left "the other half to be disposed of by my beloved wife as she shall choose." The question is, whether her power to dispose of "the other half" was executed in her will made nine years after his death. After certain bequests, she gives to the trustees of Phillips academy, of Andover, Massachusetts, for the use of the theological seminary under their care, "all the rest, residue, and remainder of all my estate." Does the competent evidence show that she understood "all my estate" included all that her husband left "to be disposed of by my beloved wife as she shall choose"? Did she mean to exercise all her disposing power? There is no occasion to inquire whether her will contains an express or distinct reference to a remainder expectant upon the termination of a life estate, or to a power of appointment, or whether she had in mind, and intended to exercise, a power technically distinguished from the right of an absolute proprietor to dispose of his property by will. Such an inquiry cannot be substituted for the question whether her will is an expression of a purpose to exercise all the right she had of determining who should be proprietors after her decease.

All, or nearly all, the property in which she had any interest during the sixteen years of her widowhood was the estate and the proceeds of the estate left by her husband. During that time, being tenant for life of the whole, and sole executrix, she used and managed the whole as if it were hers. It does not appear that she was so familiar with legal views of her husband's will as to understand the difference between a fee, and her rights of holding, using, and managing property as she saw fit during her life and deciding who should have it afterwards. A legal presumption so contrary to the fact as that which, for some purposes, imputes to everybody full knowledge of the law, has no tendency to show that as a matter of fact the testatrix used the words "my estate" in a strict sense, intending to exclude the property over which she had a testator's power, and in which her rights of use were more than those of an ordinary tenant for life. That property was hers for all the purposes for which she seems to have wanted it. It was hers to such an extent and in such a practical sense that she would be likely to regard it as hers and to call it hers. Naturally, and in accordance with the common use of language, she would *150 speak and write of lands and goods as hers which were hers during her natural life, to be used and managed as she saw fit, and the inheritance of which was subject to her unlimited control Even if she had ever maintained or recognized a distinction between those possessions that would go from her to her heirs without a will, and those that were hers for enjoyment and disposal, it would not necessarily follow that by "all my estate" she meant only one of those classes of property. There is reason to believe, and no reason to doubt, that she exercised her testamentary powers regardless of that distinction; that her knowledge of it (if she had any) was slight and indistinct; that she did not say "all my estate" with a purpose of waiving a large part of her disposing right; and that she used those words in no narrow or technical, but in their comprehensive and popular, sense.

"An estate for life with an unqualified power of appointing the inheritance comprehends everything. . . . How can the court say that it is only by will that she can appoint? By her interest she can convey her life estate. By this unlimited power she can appoint the inheritance. The whole equitable fee is thus subject to her present disposition." Barford v. Street, 16 Ves. 135, 139; Johnson v. Cushing, 15 N.H. 298. It is probable that Mrs. Richardson labored under some misapprehension as to the extent of her title and the legal character of her appointing power over what was not strictly and absolutely hers, and that the scrivener did not take time to inform himself on these subjects. The inference from the will is, that she did not understand it to be necessary or useful to distinguish between an estate of remainder and an unlimited power over such an estate, or between property that would go to her heirs if she did not otherwise direct, and property that would go to them on her order.

If the will were construed upon a presumption that she was learned in the law, there would be a difficulty in inferring that she was ignorant of her legal position, or was satisfied with her bequest of "all my estate" as an expression of a resolution to abstain from the exercise of a large part of her testamentary power. Her proprietary interest, her actual and rightful possession, use, and management, and her right of appointing legatees are competent evidence of the sense in which she used the words "my estate" in the residuary clause. Upon this, and all the competent evidence in the case, and the evidence offered by her husband's heirs, it is more probable than otherwise that she intended to exercise her entire testamentary authority, of whatever legal nature or natures it might be. And her intention is not defeated by the rule of construction, the general operation of which was regarded in Burleigh v. Clough, 52 N.H. 267, 281, with extreme dissatisfaction. Her intention, proved by competent evidence, is her will. Amory v. Meredith, 7 Allen 397, 398; Rice v. Society,56 N.H. 191, 197-203; Sanborn v. Sanborn, 62 N.H. 631, 643; Kennard *151 v. Kennard, 63 N.H. 303, 310. Her bequest to the seminary was an exercise of the disposing power given by her husband as well as that derived from the statute.

In her management of the whole property as one estate, the principal and income were mingled by investment without any observance of the difference between a life estate and a remainder. Daniels, her administrator, and Kimball, the administrator of her husband. join in asking what property each shall administer. Under the circumstances, this seems to be a question of convenience. Notes payable to Mr. Richardson, and now held by his administrator, may be conveniently collected by the holder. No reason appears why Daniels should not take and account for personal property standing in the name of Mrs. Richardson, and pay Kimball what he needs for the expenses of his administration, and for the legacies given by Mr. Richardson to Dudley, Marden, and the Bible Society. The administrators will, of course, act in concert, with full knowledge and approval of each other's proceedings, and upon consultation with the parties in interest.

CLARK, J., did not sit: the others concurred.

After the announcement of the foregoing decision, the question was presented whether the income of Mr. Richardson's estate, accruing after his death and not expended by his widow, passed by her will as her property, or whether it is a part of the estate described in his will as "whatever may remain of my property after her decease."






Addendum

A devise of property "to A for (or during) his life" the common legal form of a gift of a life estate. And its ordinary technical meaning is, that the income is A's property, and if mingled with the principal during his life, is to be severed after his death for delivery to his heirs or legatees. But there may be a qualified life estate as well as a qualified fee; and legal terms are not always understood by testators in a technical sense. However clear the intention that the life tenant may have all the income if he needs it, or may use or alienate it if he chooses to do so, slight evidence may be enough to prove an intention that so much of it as he neither spends nor conveys shall be considered a part of the property of which it is the unexpended increase. Even in the absence of modifying phrases, it is by no means certain that all testators understand that such increase will go to the heirs or *152 legatees of the tenant for life. Enlarging or abridging terms, used in connection with the usual description of the life estate, are to be duly weighed as evidence of the kind and degree of qualification intended by the testator.

The language of Mr. Richardson's will is, "I give and bequeath unto my beloved wife, Olive T. Richardson, all my personal and real estate during her natural life, to be used and managed by her as she shall see fit. And I hereby appoint her my sole executrix. . . . And whatever may remain of my property after her decease, it is my will that $500 be given to Horace P. Dudley (my blind nephew), and $100 to William Marden . . . and of the balance that one half of it be given to the New Hampshire Bible Society and the other half to be disposed of by my beloved wife as she shall choose." While her interest as devisee was a life estate in a certain sense, it was in some respects more, and in other respects less, than a technical tenancy for life. For her necessary support (if for no other purpose) she could use the principal, if the income was not sufficient. Of whatever might remain of his property after her decease, less $600, she could devise one half to her heirs; but none of that balance was to go to them as her intestate property. The direction that his whole estate is "to be used and managed by her as she shall see fit," and the provision in relation to "whatever may remain of my property after her decease," show a purpose to maintain the unity of his estate during her life to such an extent that what remained at her decease (whether more or less than the amount left by him) should be disposed of without regard to the distinction between principal and income. She did not consume all the income, and no question was raised in her lifetime as to the limits of her rightful expenditure. What now remains of her husband's property and its increase accruing under her use and management is a single fund, out of which are to be paid debts, expenses, and his bequests to Dudley and Marden. Of the balance, one half goes by his will to the Bible Society, and the other half according to the terms of her will.

CLARK, J., did not sit: the others concurred.

A motion was made by heirs of Mr. Richardson for their costs, taxed as between solicitor and client, to be paid out of the fund.






Addendum

Mr. Richardson devised property "to be disposed of by" his wife as she should choose, and she made the seminary her residuary legatee. The seminary contended that her will was an execution of her power of disposal. The heirs of her husband contended that her will was not an execution of the power, and that the property, as his intestate estate, went to them. Thereupon, by this hill, the administrators of Mr. and Mrs. Richardson asked a decision of the question of construction. For the purpose of giving the seminary and the heirs an opportunity to maintain their respective claims, and for the further purpose of obtaining a decision by which the claimants would be bound, they were joined as defendants. In the litigation that followed between the seminary and the heirs, the seminary prevailed. It was decided that Mrs. Richardson's will was an execution of the power, and that the property in controversy belonged to the seminary. The heirs now move that the fees of their counsel be paid by the plaintiffs. "Costs shall follow the event of every action or petition, unless otherwise directed by law or by the court. In all actions or petitions in the supreme court, costs may, on motion and good cause shown, be limited, allowed, and such security therefor ordered, as the court may deem just" G. L., c. 233, ss. 1, 2.

In compelling the claimants to submit to a decision of the question of construction, the plaintiffs performed a fiduciary duty. They were bound to settle the estates speedily, and not to wait for legal proceedings to be instituted by others. But they were not one of the contending parties, and the result was a matter of indifference to them. They have no beneficial interest in the property, and can gain nothing and lose nothing by an order granting or denying the heirs' motion for costs. The seminary was the only legatee that had any interest in the litigation with the heirs, and the only one that took any part in it. The other legatees might as well be required to pay a part of the taxable and non-taxable costs of the seminary, as to contribute to the indemnification of the heirs; and there is no more reason for taking their property to defray the expenses of either party, than for applying it to the payment of counsel fees on both sides of every other case on the docket.

A part of the property claimed by the seminary on one side and by the heirs on the other was realty, and a part was *159 personalty. The realty vested in the seminary at the moment of Mrs. Richardson's death. Of the personalty, the equitable title (including the whole beneficial interest) passed to the seminary at the same time. On the question now presented, the legal, provisional title of the administrators is irrelevant. They are mere temporary, disinterested trustees, holding the personalty for the claimant to whom it has been found to belong. While the equitable title was in controversy, the personalty remained in the custody of the law, not for distribution among all claimants, or for any other misappropriation or waste, but for safe keeping and delivery to the equitable owner when it should be determined who the equitable owner was. The seminary's titles, legal and equitable, were not divested, impaired, or suspended by being unsuccessfully disputed. It being now ascertained that the seminary is and was the legal owner of the realty and the equitable owner of the personalty, and the question being whether the court shall or can convey a part of the seminary's adjudicated and indisputable title to the defeated claimants, it is not material whether the property is money, or a chattel specifically bequeathed, or a farm specifically devised, by Mr. Richardson to his wife's appointee, or whether the ownership of it, which vested in the seminary at the termination of Mrs. Richardson's life estate, was equitable only, or equitable and legal.

As corporate property may become insecure under an inadequate conception of the fact that its owners are bodies of natural persons, so the safeguards of property committed to the care of executors and administrators, and called the estates of deceased persons, may be affected by a vague notion that funds so held in trust during the process of administration do not belong to certain living heirs or legatees in the full equitable sense in which a workman's wages are his, or that the equitable title is less sacred than the legal title of other property in the possession of its absolute owners. Mr. Richardson's heirs, having done nothing either to save this fund for the owner, or to enable the owner to get it, but having merely done what they legally and properly could to get it from the owner, are entitled to no salvage out of it, and have no lien upon it for services performed in the prosecution of their invalid claim. The seminary's legacy in the administrators' hands is no more liable, in any legal sense, to be applied in payment of the heirs' expenses, than any other property of the seminary liable to be taken on execution. If the heirs' motion were granted, it would be, not because they are entitled to a portion of the seminary's legacy, but because, for taxable and non-taxable costs, they are entitled to a judgment against the seminary. It is true that an able presentation of each side of every case is a desirable mode of obtaining a correct decision. But this advantage does not justify either an exception in this particular class of cases, or a general rule that, as to counsel fees, the losing party shall prevail. *160

A motion that the court convey A's property to B without A's consent can be granted only in pursuance of a constitutional law authorizing the conveyance. Upon these heirs rests the burden of showing the legality and justice of taking property from the seminary whose title is established by a final and conclusive judgment, and transferring it to the persons whose want of title is settled by the same judgment. It is not enough that such a practice prevails in other jurisdictions, American and foreign. It is necessary to produce New Hampshire authority consistent with those rights of property which are regarded here as fundamental. The legislature may leave upon each party the expense of maintaining his claim. They may allow the recovery of costs as a reparation of incidental damage suffered by the prevailing party, or as an application of some other sound theory of legal justice. At common law, a necessary expense of protecting or managing a trust fund, whether incurred by the trustee or by the beneficiary, may be charged upon the fund. Burke v. Concord Railroad, 62 N.H. 531. But the costs of the heirs in this case cannot be paid out of the seminary's property, unless, by a general rule, the prevailing party should bear the expense of an attack upon his title, or a sufficient legal reason is given for making cases of this class an exception to the contrary rule.

It is not material whether the question of construction arose upon a will, or upon a document of some other kind. In the legal character of an ambiguous will, deed, lease, note, statute, constitution, or other writing, there is nothing that requires the party prevailing on the question of its meaning to pay his adversary's counsel. If Mrs. Richardson had done by deed what she did by will, and the seminary had brought a writ of entry against the heirs, it would be held on her deed, as it was held on her will, that she intended to exercise all her right of disposal, and that the writing was an execution of her power of appointment. The seminary would recover judgment and a writ of possession for the land, and an execution for costs. The heirs would not be volunteers in the suit. They could complain, as they do now, that they were compelled to go into court and urge their view of the case, or submit to an ex parte decision; but the complaint would be unavailing in the absence of a valid law giving costs to involuntary litigants. No greater injustice would be done by rendering a judgment in that action against the plaintiff for the defendants' counsel fees, and satisfying the judgment by setting off to them on execution a part of the land given to the plaintiff by the Richardsons, than in ordering these administrators to pay the heirs' counsel out of the seminary's legacy. Between the two cases there is no distinction of law or fact that affects the merits of the present motion. If the seminary had been content to allow its legacy to remain in the plaintiffs' hands, and the plaintiffs had been content to hold it until the heirs brought an action to try the question of title, their *161 motion for costs would have been denied. A legatee is entitled to the whole of his legacy when his title has been unsuccessfully disputed in a suit brought by other claimants. The Dublin Case, 41 N.H. 91, 94. And the question whether he is entitled to the whole of his property, or whether a defeated claimant is entitled to a part of it, does not depend on the time or place chosen for a determination of the controversy, or on the circumstances that induced one person rather than another to exercise the right of bringing the question of title into court for decision.

It is not material that the construction of Mrs. Richardson's will was a debatable question which both parties, acting upon the best legal advice, had good reason to litigate. The expenses of the losing party are not cast upon his adversary by the circumstance that the claim, in the prosecution of which they were incurred, was not frivolous or vexatious. Men do not generally go to law in the absence of all uncertainty and all difference of opinion as to their rights. Litigation supposes a doubt entertained by somebody, or a controversy that raises a question. And if the expenses of the losing party were payable by the other in a case apparently contestable on both sides, it could make no difference whether the litigated question was one of legal construction, sanity, identity, value, quantity, quality, of any other of the innumerable issues of law and fact that are tried and decided by referees, jurors, or other judges. Between a doubt concerning the meaning of a will or other writing, and an equal doubt on any other subject, no line can be drawn on which the court can legally assume to indemnify the losing party out of his opponent's property in one class of cases, and not in all cases that are properly contested. Whatever degree of uncertainty might be selected as the test, legal principle would demand consistency and uniformity in its application. If the court should undertake to say when a question is doubtful enough to require the prevailing party to make the other whole in the matter of costs, the same test would be applicable to all forms of action and all kinds of controversies. To single out a particular class of cases without legal cause, and say, in this class we will convey property from its owner to some other person, would be an assertion of arbitrary power at variance with our system of government.

"It is a general principle that a trust estate must bear the expenses of its administration. It is also established by sufficient authority, that where one of many parties, having a common interest in a trust fund, at his own expense takes proper proceedings to save it from destruction and to restore it to the purposes of the trust, he is entitled to reimbursement, either out of the fund itself, or by proportional contribution from those who accept the benefit of his efforts." Trustees v. Greenough, 105 U.S. 527,532, 533. "While I agree to the decree of the court in this case, I do not agree to the opinion, so far as it is an argument in favor of a *162 principle on which is founded the grossest judicial abuse of the present day, — namely, the absorption of a property or a fund which comes into the control of a court, by making allowances for attorneys' fees and other expenses, pending the litigation, payable out of the common fund, when it may be finally decided that the party who employed the attorney, or incurred the costs, never had any interest in the property or fund in litigation. This system of paying from a man's property those engaged in the effort to wrest it from him can never receive my approval." Miller, J., p. 538.

The origin of the abuse is apparent. An expense of saving a trust fund, or otherwise causing it to be legally administered, may be an expense of the trust, payable out of the fund, whether incurred by the trustee who holds the legal title, or by the beneficiary who holds the actual interest. It is sometimes a question whether an expense was incurred by an equitable owner in the protection of the property and the enforcement of the trust, or by a claimant of the equitable title in a contest with another claimant of the same title; and the distinction is not always accurately maintained between costs of administering the fund for the benefit of the owner, and costs of an effort to divert it to a claimant not known to be, or known not to be, the owner. "If a person claims as legatee, and his bill is dismissed, he will not be entitled to his costs out of the testator's estate, notwithstanding there is an ambiguity in the will which renders it necessary to apply to the court for its construction. . . . It does not seem to us that there is here any just ground to charge the expenses of this litigation upon the fund in controversy. The action is brought by the plaintiffs for the purpose of recovering a private right to which they thought themselves entitled. They have failed to satisfy the court of the correctness of their construction of the will in question, and they consequently stand in the position of mere strangers, setting up a claim which they are unable to support." The Dublin Case, 41 N.H. 91, 94.

There is no legal or equitable ground on which this case can be made an exception to the rule, that the prevailing party does not pay his adversary's taxable and non-taxable costs. The fees of the heirs' counsel were not an expense of fiduciary administration. For all purposes that are relevant on the present motion, the heirs are the losing party, and the seminary is the prevailing party, on an ordinary question of title. If the administrators should be ordered to pay the heirs' counsel out of the seminary's legacy, it would follow in all cases that the prevailing party should pay his opponent's counsel fees and other expenses, and recover nothing except what might be left of the property or damages in controversy after fully indemnifying the other side. If it had been enacted that, in cases of wills and corporations where title is contested, the court shall convey, by levy of execution or otherwise, enough of the property from the person adjudged to be the owner to the *163 other claimant to indemnify him for all loss, cost, and damage resulting from his claiming what was not his, it would have been necessary to inquire how the statute could be sustained. If the seminary's title could be considered as suspended during administration or during litigation, an order granting the heirs' motion would be a violation of the statute of wills (G. L., c. 193, s. 1) and the rights of Mr. and Mrs. Richardson. A testator necessarily intends that his property shall be subject to expenses of administration, but not to the costs of an ineffectual attempt to defeat his will. The diversion of any part of the Richardson estate from the destination fixed by the testators would not be an exercise of judicial power.

Motion denied.

CLARK, J., did not sit: the others concurred.