Opinion
No. 3638.
Decided April 1, 1947.
Although by the terms of the testator's will an heir-at-law was excluded at least conditionally as a beneficiary, he is not thereby deprived from taking his distributive share in property undisposed of by the will. In the absence of a provision in a will for the disposition of the residue of the estate after the death of a life tenant such residue passes as intestate property under the statute of descent and distribution. Ordinarily, in such case, the heirs or next of kin are determined as of the testator's death.
PROBATE APPEAL (R. L., c. 365) from a decree of distribution of the Probate Court for the county of Cheshire, ordering the named appellee as administrator d. b. n., w. w. a. to pay over the balance remaining in his hands to nine nephews and nieces of the testator, Walter F. Burpee. Transferred on an agreed statement of facts by the Court (Duncan, J.) without ruling. (R. L., c. 369, s. 7).
The testator died in 1926 survived by his son, his widow and nine nephews and nieces. The son, Forrest, died childless in 1930 and the testator's widow died in 1942.
The will, after certain specific bequests, gave the widow a life estate in all his property with the right to invade the principal "as she may deem advisable." The material provisions of his will provide:
"Fifth. To my son, Forrest P. Burpee, of said Troy, I leave nothing except as is noted below.
"Sixth. Such property as may be left at the decease of my said wife, if my said son shall have a child or children, do I give, devise, and bequeath to Don Randall of said Troy in trust, however, for the education of the said child or children of my said son, as the said trustee may deem advisable, and if there shall be any funds or property remaining when the said child or children of my said son shall have obtained the age of twenty-one years, then do I direct that such remainder shall be given to them outright, for them to have and to hold the same to their own use and behoof forever.
"Seventh. If, however, my said son shall have no children, then do I give, devise, and bequeath such property as may be left at the decease of my said wife to the said Don Randall in trust, however, the income therefrom to be paid to my said son and when my said son shall have obtained the age of forty years, if in the opinion of the said trustee he shall have sufficient ability to take care of the same, then do I give, devise and bequeath such property as may then be remaining to my said son and for him to have and to hold the same to his own use and behoof forever."
The will contains no reference to the nephews and nieces.
The appellant is the widow of the son, Forrest. Two nephews and one niece of the testator are appellees.
Normandin Normandin (Mr. Fortunat A. Normandin orally), for the appellant.
Arwe Arwe (Mr. Henry C. Arwe orally), for the appellees.
The will made no provision for the disposition of the residue of the estate after the death of the wife in the event that Forrest should predecease her leaving no issue. Since that contingency happened, the balance in the hands of the appellee, administrator, passes as intestate property. R. L., c. 360. White v. Weed, 87 N.H. 153; Heffenger v. Heffenger, 89 N.H. 530.
The first argument in support of the Probate decree is that the fifth and seventh clauses of the will disclose an intent to disinherit Forrest at least conditionally. "If testator does not dispose of the whole of his estate by his last will and testament, and such will contains negative words of exclusion, the great majority of states hold that such negative words cannot prevent property from passing under the statutes of descent and distribution." 2 Page, Wills (1941 ed.) s. 929. This majority rule has been adopted in this state in Wells v. Anderson, 69 N.H. 561, where it was decided that a bequest of "one dollar and no more" to an heir-at-law of the testator will not prevent him from taking his distributive share in property undisposed of by the will. See Loveren v. Donaldson, 69 N.H. 639, 640 and Upton v. White, 92 N.H. 221, 225. There is general agreement among commentators as to the validity and existence of this rule. Remsen, The Preparation of Wills and Trusts (2d ed.) 364; Rollison, Will Clauses Anno. (1946) 393. Accordingly the appellant is not deprived by the fifth and seventh clauses of the will from taking under the statute of descent and distribution.
It is further argued that if the property passes intestate the heirs should be determined at the date of the death of the widow. Cf. Kimball v. Lancaster, 60 N.H. 264, 273. When property is devised or bequeathed by will to heirs or next of kin, they are to be ascertained as of the date of testator's death (Simes v. Ward, 78 N.H. 533) or as of the life tenant's death (Holmes v. Alexander, 82 N.H. 380) depending in each case on the intention of the testator. In cases of intestacy or partial intestacy the property passes by force of the statute and generally the heirs or next of kin are determined as of the testator's death. See Anno. 132 A.L.R. 1069. The record discloses no reason to take this case out of the application of the general rule and therefore the appellant is entitled to a decree in her favor.
Case discharged.
All concurred.