Summary
In Rogers v. Scagliotti, 96 N.H. 134, 71 A.2d 407 (1950), the will provided that the testator's niece "shall have a home [in testator's homestead] as long as she pleases during her life without any rent."
Summary of this case from Estate of Peacock v. U.S.Opinion
No. 3891.
Decided February 7, 1950.
Former decisions upon the construction of wills have no binding force in a given case unless the language of the will and the circumstances are so far identical as not to admit of a reasonable distinction. A devise by the testator to his nephew of his homestead in fee subject to the right of the testator's niece to "have a home therein as long as she pleases during her life without any rent" provided his niece alone, who was living there unmarried when the will was executed, and not her husband and children the right to occupy the premises with the nephew. In the event questions arise as to her reasonable user they may be determined by the Trial Court in the absence of agreement between the parties.
PETITION for a declaratory judgment to construe the will of Edward James Rogers who died on November 10, 1947 leaving personalty inventoried at $641 and his home place in Rochester appraised at $5,000. The will is dated October 3, 1946. The clause therein disposing of his home, the subject of this litigation, reads as follows:
"First: I hereby give, bequeath and devise to my beloved nephew, George T. Rogers of said Rochester and his heirs forever my homestead dwelling-place, all land connected therewith, situate on the southerly side of Portland Street in said Rochester, New Hampshire, at one hundred and seventeen Portland Street, and all contents therein, also including my Ford Automobile, provided however, that my niece, Mary Frances Barry of said Rochester shall have a home therein as long as she pleases during her life without any rent."
With the exception of the above provision for the benefit of Mary, all of the testator's property was willed to George.
The testator was Mary's great uncle. George is her uncle, Mary is in her early twenties, and George has been married about twenty years.
The homestead in question is a single family house consisting of seven rooms with two other rooms in the attic. The Court (Leahy, J.) found that it is suitable for occupancy by one family only.
Mary came to live with the deceased in June of 1945. At that time Mary's mother was living there but she was later asked by the testator to leave and did so. Mary continued living there until she was married to the defendant Joseph J. Scagliotti on September 20, 1947. Mary apparently had no particular interest in her mother and she had none in Mary. There was no person other than the testator to exercise parental care over Mary and she had no other home.
George assisted his uncle financially and in other ways from 1940 to his death. He gave Mary away at her wedding and the invitations were in his name. The relations between all parties were cordial and there was no ill will on the part of any person towards the other.
Further facts appear in the opinion.
"The interpretation of the clauses in the will based on the intent of the testator in determining the nature and extent of the estate or estates intended to be created is transferred without ruling."
Frank W. Peyser (by brief and orally), for the plaintiff.
Hughes and Burns and Donald R. Bryant (Mr. Bryant orally), for the defendants.
We are confronted with the familiar question of fact as to what the testator meant by what he said. Our courts have held in such cases that former decisions have no binding force "unless the language of the will and circumstances are so far identical as not to admit of a reasonable distinction." Remick v. Merrill, 80 N.H. 225, 227; Holmes v. Alexander, 82 N.H. 380, 383. See also, Belford v. Olson, 94 N.H. 278, 283. An analogous principle has been applied repeatedly when the meaning of the word "home" was involved. Day v. Towns, 76 N.H. 200. See also, Hill v. Carr, 78 N.H. 458, 460, and cases cited; 101 A.L.R. 1461 n. 1487-1490. No case has been called to our attention, nor do we know of any, so far identical as to be of value here as a precedent. We therefore decide this case upon the facts as agreed to by the parties or found by the Trial Court.
On October 3, 1946 when the testator made his will he owned his own house and the contents thereof. He was furnishing therein, free of rent, a home to Mary who had no other, and he was exercising parental supervision over her. Mary was then in her teens, had not yet met her husband and there was no immediate prospect that she would leave. The testator, a bachelor, was then advanced in years having retired as a railroad conductor in 1940.
To satisfy his obligation to George, both for financial aid and for personal assistance which George rendered him, the testator gave George all of his estate except for the provisions which he made for Mary to continue thereby, as nearly as possible, after his death the same situation which existed as to her at the time he made his will. See Westgate v. Haverhill, 68 N.H. 593, 595. George was to take his place owning the home and the contents. Mary was to have, with the closest relative left who could look out for her, "a home therein so long as she pleases during her life without any rent." When Edward made his will Mary did not have a life estate in the homestead nor did she have the right to the exclusive occupancy thereof. She personally was living there, without rent and that, in our opinion, is the situation which the testator intended to perpetuate. He gave Mary alone and not to her husband or their children, if any, the right to occupy and make her home in this house.
To hold that Mary had any greater right, in our opinion, would deprive George of personally enjoying any substantial benefit from the estate which the testator was leaving him in payment for what George did for him, and would destroy the main purpose of his will. Remick v. Merrill, supra, 229.
This right that Mary alone has to occupy these premises is hers to exercise and enjoy "so long as she pleases during her life." In the event she chooses to avail herself of it at any time, if the parties cannot agree upon questions of her reasonable user, they may be determined by the Trial Court. Clough v. Clough, 71 N.H. 412, 417.
Case discharged.
All concurred.