Opinion
No. 5250.
Argued September 11, 1964.
Decided November 4, 1964.
1. If a will makes a gift to the testator's heirs and the will construed as a whole demonstrates a plan to determine the heirs at some time other than the date of the testator's death such provision will be enforced.
2. In the absence of any residuary clause in the testator's will and the failure to make any provision for a gift over upon termination of the trust for the widow as life beneficiary the balance of the trust fund passes as intestate property and in such case the residue passes by force of the statute and the heirs or next of kin are determined as of the testator's death.
3. A provision in such will that if any of the testator's heirs should bring any action against the widow as trustee for errors of judgment, his share would be forfeited, militated against a construction that would determine the testator's heirs only after the decease of the widow.
Certification of a question of law from the probate court of Sullivan county (Shaw, J.) to the Supreme Court pursuant to the provisions of RSA 547:30. The testator, John L. Farwell, died November 29, 1942, leaving a will dated March 30, 1937 which was duly allowed. The will provided that all of his estate was devised and bequeathed to his wife Lucie "in trust, for her use during her natural life" with limited powers to invade the principal. The will contained no provision for the disposition of the remainder of the trust funds upon the death of Lucie who died in May 1963. The trustee requested instructions of the probate court whether the balance of the trust fund to be distributed at the death of Lucie "is to be made to the heirs of the testator as they existed at the death of the testator, or to his heirs as they existed at the death of the life beneficiary" Lucie. This is the question certified by the probate court to the Supreme Court. RSA 547:30.
"It is stipulated and agreed by all the interested parties that at the time of the making of the will the said John L. Farwell had a wife, Lucie B. Farwell, a brother George Farwell, and two sisters, but no issue. No issue was subsequently born to testator, and the two sisters and brother predeceased him; at testator's death his legal heirs would have been his widow and his brother's two children, Grosvenor Farwell and Susan Bennett. Grosvenor Farwell predeceased the testator's widow, Lucie; at her death the testator's legal heirs would have been Susan Bennett and Grosvenor Farwell's son, Grosvenor Farwell, Jr.
"If distribution of the remainder of the Estate of John Farwell in the Trustee's hands at the death of Lucie B. Farwell, is to be made to testator's heirs as of the date of his death, distribution will be made in equal shares to the executrix of the will of Grosvenor Farwell and Susan Bennett; if it is to be made to testator's heirs as of the date of the death of Lucie B. Farwell, distribution will be made in equal shares to Grosvenor Farwell, Jr. and to Susan Bennett."
Leahy Denault for the trustee, furnished no brief.
Sulloway, Hollis, Godfrey Soden (Mr. James B. Godfrey orally), for Caroline W. Farwell, executrix of the will of Grosvenor Farwell.
Nighswander, Lord Bownes and Conrad E. Snow (Mr. Snow orally), for Grosvenor Farwell, Jr.
Susan Bennett, pro se, furnished no brief.
It is argued by Grosvenor Farwell, Jr. that the will evidences a purpose to divide the estate among the heirs as they existed at the death of the life beneficiary, and that this purpose should be effectuated. Kimball v. Lancaster, 60 N.H. 264; Hardy v. Gage, 66 N.H. 552. Reliance is placed in part on item 5 of the will: "If any of my heirs should bring any action at law or in equity against my wife, as Trustee, for any losses or errors of judgment made in good faith, such action brought by or on behalf of any heir shall immediately bar such heir from sharing or receiving any share or interest in my estate whatsoever at any time." However, this provision of the will, while not conclusive, is a strong indication that the testator considered his heirs at his death would succeed to his estate subject only to the interest he created in his wife for life. This item of the will is a recognition by the testator that his heirs would have an interest in his estate during his wife's life and militates against a construction that would determine the heirs only after the decease of the wife. See 1 Nossaman, Trust Administration and Taxation, s. 12.09 (2d ed. 1959); Restatement, Property, s. 308, comment a.
If a will makes a gift to the testator's heirs and construed as a whole demonstrates a plan to determine the heirs at some time other than the date of the testator's death, it will be enforced. Watson v. Young, 102 N.H. 436. See also, 5 American Law of Property, s. 22.60 (1952); Leach and Logan, Future Interests and Estate Planning, pp. 458 et seq. (1961). The present will is not in that category. National Shawmut Bank of Boston v. Zink (Mass.), 196 N.E.2d 917; In re Simard Estate, 98 N.H. 454, 458; Burpee v. Pickard, 94 N.H. 307, 309.
In the absence of any residuary clause in the will and the failure to make any provision for a gift over upon the termination of the trust for the widow, the balance of the trust fund passes as intestate property. In re Simard Estate, supra; 4 Page, Wills, s. 33.58 (Bowe-Parker Rev. 1961). In cases of intestacy or partial intestacy the property passes by force of the statute and the heirs or next of kin are determined as of the testator's death. Burpee v. Pickard, 94 N.H. 307, 309. See Annot. 132 A.L.R. 1069; 27 A.L.R. 2d 691; 3 Powell, Real Property, s. 375 (1952).
The probate court is advised that the balance in the trustee's hands is to be distributed to the testator's heirs as of the date of his death and the distribution will be made in equal shares to Susan Bennett and to the executrix of the will of Grosvenor Farwell.
Remanded.
All concurred.