47 A. 89 | N.H. | 1899
By the terms of the will, the income of the residue of the estate, for the term of ten years, was to be applied for the relief of the most destitute of the testator's relatives, not to extend beyond the children of his brothers and sisters and their families, and then the principal was to be "equally divided between them, including the children of Nathaniel H. Thurston, deceased, and the children of Sarah A. Towle." In respect to the income, it has already been decided that a charitable trust was created, the beneficiaries of which were limited to such of the testator's relatives as were not more remote than nephews and nieces and their families. Gafney v. Kenison,
In its broadest sense, "relatives" means all persons connected with another by blood or affinity, however remote the connection. There is, however, a limit beyond which these ties are not sufficiently strong to influence a person in making a disposition of property. This fact is recognized in the laws of descent and distribution by the limitation of the persons who take under them to the next of kin, if there is no child, father, mother, brother, or sister. When the testator first used the word in his will, he expressly provided that it should not extend beyond the children of his brothers and sisters and their families. It thus appears that he used it in a limited sense.
The word "relatives" and the words "next of kin" have been used in wills to designate the next of kin according to the statute of distribution. Varrell v. Wendell,
Several independent provisions of the will uniformly tend to show that the testator did not intend to include in these terms any persons whose connection with him was more remote than that of children of his nearest of kin, or those who were nearest to him by reason of association and affection. Relatives more remotely connected were not to be relieved from the income. A legacy of $25 was given to each of his nephews and nieces, but no legacy was given to any grandnephew or grandniece, although there were many of them, and some whose parents had died before the date of the will. He "brought up" Mrs. Towle. He gave her $5,000 and her child $5,000 — much larger legacies than he gave to any of his kin. Thurston had lived in his family and died at his house. He gave each of Thurston's children a liberal legacy. Evidently his association with these persons had been such that they were very near to him in affection; and yet in respect to them and their descendants he did not extend his gifts beyond their children. This evidence seems to be decisive of the point as to the limitation which the testator placed upon the term "relatives" and its representative.
It may be said that the connection in which the pronoun "them" stands shows that it was intended to supply the place of the words "the most destitute of my relatives, not to extend beyond the children of my brothers and sisters and their families." The testator attempted to accomplish two objects by the provision of the will in which these words occur: (1) The application of the income of the residue of his property for a term of years to the relief of destitute relatives, and (2) the ultimate division of the principal. As his purpose was not to distribute the income among his relatives or the most destitute of them in fixed proportions, but to have it applied to their relief according to their needs, it was necessary to create a trust to accomplish the object. Accordingly he gave the possession and control of the property to his executors for the term of ten years, accompanied with authority to determine who were relatively the most destitute of his relatives, to what extent they should severally be relieved, and whether the relief should be furnished in money or otherwise. Gafney v. Kenison,
The question, when these legacies vested, remains. Was it at the death of the testator, or at the expiration of the term during which the trust was to continue? A will ordinarily speaks as of the time of the testator's death. "My relatives" are relatives who were living at that time. Langmaid v. Hurd,
In Pinkham v. Blair,
To make a division of the residue according to these views, it should be divided into as many equal parts as there were persons living at the decease of the testator who were his sister, nephews and nieces, and the children of Nathaniel H. Thurston and Sarah A. Towle; and each of such persons now living should have one part; and if any have died in the meantime, their representatives should have their parts respectively.
Case discharged.
WALLACE, J., did not sit: the others concurred.