Opinion
No. 4060.
Decided November 6, 1951.
The probate court charged with the settlement and final distribution of the estates of deceased persons may certify to the Supreme Court, under the provisions of Laws 1947, c. 90, questions of law concerning the proper distribution of a decedent's estate under the terms of the will. Where the testatrix had bequeathed her estate first to her children, then to her grandchildren, and finally to her five brothers and sisters all deceased "and to the representatives of those not living . . . in equal shares" it was her intention, from a construction of the will as a whole, that the representatives of each of the deceased brothers and sisters should share the residue of the estate per stirpes.
CERTIFICATION, of a question of law to the Supreme Court by the probate court of Hillsborough County pursuant to R.L., c. 346, s. 29, as inserted by Laws 1947, c. 90. The facts are not in dispute.
Under the first four clauses of the testatrix' will executed in 1894 her unmarried son Edward, and her married daughter Delana Curtis were bequeathed the income from the estate in equal shares during their life and then to the survivor, the son to have the use of her dwelling house for life, and her only granddaughter, Margaret Curtis, the residue of the estate. The fifth clause provided that if either of her children had "other heirs of their body surviving them," they should share equally in the residue with her granddaughter. This contingency did not occur as the son died without issue and the daughter had no other children. The seventh and final clause of the will named the son and daughter as executors with power to sell the whole or any part of the personal property for their comfort or support.
All of the provisions of the will "have been carried out" except the sixth clause which reads as follows: "Sixth — If my Grand Daughter Margaret May Curtis or other grand children shall survive both of my children and shall have and leave no heirs of her or their body, then and in that event, I give, bequeath and devise all my estate unto my brothers and sisters then living and to the representatives of those not living, and to my late husband's niece, Almeda S. Goyscan formerly Almeda S. Harrington, in equal shares." The granddaughter survived both children of the testatrix and died leaving no issue. Almeda predeceased the testatrix without issue. The testatrix had five brothers and sisters, all of whom are now deceased. All of their representatives joined the administrator with will annexed and a guardian ad litem in petitioning the probate court to instruct the administrator as to whether the thirteen representatives of the five deceased brothers and sisters "shall share the same on a per stirpes or per capita basis."
The probate court (Lemelin, J.) transferred this question pursuant to Laws 1947, chapter 90.
Murchie Cofran, for legatees Rufus F. Bond and Noyes F. Bond.
Floyd Thorp for legatees Charlotte G. Black, Laban W. Bond and Lillian Morey.
The administrator with will annexed, the guardian ad litem and the remaining legatees filed no brief.
"The authority of the probate court under Laws 1947, chapter 90, is limited to the certification of questions of law upon which the court desires instructions for the proper decision of matters duly before it in proceedings coming within its statutory jurisdiction." In re Gay Estate, 97 N.H. 102. All of these requisites are present in this case. The "settlement and final distribution of estates of deceased persons" (R. L, c. 346, s. 3) is an essential and integral part of its statutory jurisdiction. See In re York Estate, 95 N.H. 435, 436. One of the matters duly before this probate court was the proper decision to be made in the distribution of the personal estate bequeathed. In re Rose Estate, 95 N.H. 208. "The personal estate bequeathed by a testator shall be distributed by decree of the judge according to the will." R. L, c. 360, s. 7. Since the probate judge could not allow a final account or approve a petition for a decree of distribution without first construing the will involved in this proceeding (Amoskeag Trust Co. v. Haskell, 96 N.H. 89), it logically follows that the question of law certified by him sufficiently indicated that he desired instructions for the proper decision of matters duly before him. In re Mooney Estate, decided this day. See Duncan v. Bigelow, 96 N.H. 216, 219.
The phrase "to the representatives of those not living . . . in equal shares" in the sixth clause of the will was not a crystal clear expression of the mode of distribution by which the representatives were to take under the will as many will cases have demonstrated. Anno. 13 A.L.R. (2d) 1023. Although the phrase was "not expressed with verbal precision" (Brown v. Philbrick, 79 N.H. 69), a reasonable construction of it is not difficult when considered with the will as a whole. Roberts v. Tamworth, 96 N.H. 223, 227. The principal objects of the testatrix' bounty were her two children and her granddaughter. The granddaughter was a young girl at the time the will was executed and the testatrix "must have realized" that she might "outlive" all of her children and brothers and sisters — "which she has done." Romprey v. Brothers, 95 N.H. 258, 261. Here, as in the cited case, the testatrix "knew that final distribution might be in the distant future and that [she] could not foresee who the legal heirs might be." At this point in the sixth clause of the will she was disposing of her property "when all the people in whom the [testatrix] is primarily interested are out of the picture . . . ." Casner, Construction of Gifts to "Heirs" and the Like. 53 Harv. L. Rev. 207, 249.
"In the ordinary use of language distribution by right of representation, or, as it is more technically called, per stirpes, is opposed to distribution in equal shares among persons, or per capita. Some way of reconciling these expressions must be discovered, or one of them must be rejected and given no effect. The latter course is never adopted except as a last resort. . . In this case we think it easy to reconcile them. In our opinion, the words `in equal shares by right of representation' mean per stirpes, with equality among the stirpes." Bradlee v. Converse, 318 Mass. 117, 119. Similar language has been construed in like manner in several wills in this state. Merrill v. Curtis, 69 N.H. 206; Brown v. Philbrick, 79 N.H. 69; Conant v. Curtiss, 93 N.H. 398. See Faulkner v. Faulkner, 93 N.H. 451.
Since Almeda Goyscan predeceased the testatrix without heirs in the descending line, her interest lapsed by virtue of R.L., c. 350, s. 12; Roberts v. Tamworth, 96 N.H. 223. Consequently the residue which passes under the sixth clause should be divided into five parts which is as many parts as there were brothers and sisters of the testatrix. Merrill v. Curtis, supra. The representatives of each of the deceased brothers and sisters will take one of such parts and share it per stirpes. Such a distribution gives full effect to all the language of the sixth clause of the will and is consistent with the equality of treatment which appears throughout the whole will which bequeathed property first to children, then to grandchildren and finally to collateral relatives.
Case discharged.
JOHNSTON, C.J., dissented: the others concurred.
I am of the opinion that a probate court has no jurisdiction to entertain a petition for advice and instructions for the reasons stated in the opinion In re Gay Estate, 97 N.H. 102.