Opinion
No. 3666.
Decided July 2, 1947.
A testamentary provision that a residuary fund "be invested by my executors . . . in refund annuity insurance or such other classification of annuity they deem best for" the testator's daughter does not authorize the executors to convey the fund to her in fee but rather directs that the fund be invested in an annuity which will provide her with a regular income for life in accordance with the intent of the testator.
PETITION by the plaintiff under R. L., c. 370, s. 20, for a declaratory judgment as to her interest in the residue of her father's estate, and that the defendant executors be ordered to distribute to the plaintiff her share in the residue, and not invest it in certain annuity insurance as provided by her father's will.
The defendants in their answer ask that the plaintiff's petition be denied, that any trust created by the will be not terminated by the plaintiff, and that the plaintiff's share be paid to her only after investment by the defendants as directed by paragraph 3 of the will.
The material portions of the disputed will read as follows:
"FIRST For my daughter, Mae Dodge Bedell, I have made the following provision from my Estate, viz: I have assigned to her $25,000.00, in refund annuity, upon insurance policies held by me in the New England Mutual Life Insurance Company. . . .
"THIRD All of the rest, residue and remainder of my Estate, real, personal and mixed and wherever situate, I give, bequeath and devise: One-half to my said daughter, Thelma, and her heirs. The remaining one-half to my said daughter, Mae, if she be living at my decease; if not, to her heirs. If she be living at my decease, said one-half of my Estate to be invested by my Executors hereinafter named, in refund annuity insurance, or such other classification of annuity they deem best, for her benefit."
The testator also gave outright to his daughter Thelma a substantial amount of property represented by stocks, land, buildings and contents.
The Court after hearing made findings of fact and rulings of law in substance as follows:
That a valid trust was created for the benefit of the plaintiff, the purposes of which were to provide her with a regular income for life, through refund annuity insurance, or such other classification of annuity as the executors might deem best for her benefit. The Court also found that the testator did not intend to give the plaintiff a fee. He ruled as a matter of law, that the will did not express the testators intent clearly enough to find that there was any material purpose for the continuation of the trust, and that it must be terminated upon request by the plaintiff.
The defendants excepted to the Court's findings and rulings and to his failure to grant their request for certain findings of fact.
Reserved and transferred by Goodnow, J.
Mack M. Mussman (by brief and orally), for the plaintiff.
Francis G. Moulton (by brief and orally), for the defendant.
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, 81 N.H. 275. To hold that the executors have no such discretionary power is to render meaningless the vital words, "or such other classification of annuity they deem best, for her benefit." To do this also violates the wise principle adopted by Doe, C. J., in Sanborn v. Sanborn, 62 N.H. 631, 644, stated as follows: "`No word, or clause, or sentence is to be rejected or overlooked, if a reasonable and consistent construction can be given to them . . . the general rule is now settled, that their natural effect and weight is to be given to every part of the language used, in whatever part of the instrument it is found.'"
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, 77 N.H. 544, 545; Osgood v. Vivada, ante, 222. Nor is it necessary that any particular phraseology be used. Osgood v. Vivada, supra. It appears unnecessary to decide in this case whether a trust has been established (see Parker v. Cobe, 208 Mass. 260), or to enter into extended analysis of decisions in other jurisdictions which reach a different conclusion from the one reached here. It is sufficient to say that these decisions, following the English rule, admittedly disregard the intent of the testator. 3 Scott, Trusts s. 346. These cases have been subject to well considered criticism in an article in 41 Mich. L. Rev. 276. There the author points out that an annuity offers a simple, inexpensive way whereby the testator may protect the future welfare of the beneficiary as contrasted with the expense and complications of the trust method.
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, 87 N.H. 189, cited by the plaintiff in her brief, while holding that a trust must terminate, as its continuance was not necessary to carry out any material purpose, expressly states "that the trust must continue until the purposes for which it was created were accomplished." Id., 193. Furthermore in that case the court pointed out that "the language of the will is obscure and conflicting," and that it was "difficult to ascertain what result the testator intended to achieve." Id., 191. In the present case the intent of the testator is not obscure nor is his object of protecting his daughter during her lifetime yet accomplished.
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.