Opinion
No. 5420.
Argued January 4, 1966.
Decided March 30, 1966.
1. In a petition for construction of a will which devised all of the testator's estate to the wife's use forever but with further disposition as to certain real property upon death of the wife it was held that considering the will in the light of the whole testamentary plan the interest of the widow in such real property was more than a conventional life estate but less than an absolute fee simple interest and hence the wife had the power of disposal of such property in her lifetime.
2. Clauses in a will are not to be read in isolation of each other and the meaning of a particular clause is to be determined from the language of the will as a whole.
Certification of questions of law to the Supreme Court by the probate court of Rockingham county (Treat, J.) RSA 547:30. The certification was initiated by a petition for instructions filed in the probate court by the administratrix with will annexed of the estate of Jacob Segal and five of his six children and heirs. Jacob Segal's will was allowed in 1959.
Clauses 1, 3 and 4 of the will of Jacob Segal read as follows:
"1. I hereby give, devise and bequeath to my wife, Dora Segal all my property of whatsoever description whether the same be real, personal or mixed, for her own use and behoof forever. . . .
"3. Upon the death of my said wife, Dora Segal, I hereby give, devise and bequeath to my daughter, Ruth Kovnit, the real estate numbered 105 and 107 Market Street, Portsmouth, and in addition to said real estate, I bequeath to my said daughter, Ruth Kovnit the sum of $500.00.
"4. All the rest, residue and remainder of my estate, I give, devise, and bequeath equally to my children: Moses Segal, Harry Segal, Sarah Borwick, Rose Fradkoff and Israel Segal, said remainder shall be paid to them in equal shares outright."
In 1960 Jacob's widow, Dora Segal, conveyed the real estate numbered 105 and 107 Market Street, Portsmouth (in equal shares) to all of their six children which included Ruth Kovnit. The final account in the estate of Jacob Segal was allowed December 11, 1961 but no legacy payments (including the $500 bequest to Ruth Kovnit) were ever made. Dora died testate in 1962 devising all of her estate to the six children in equal shares. The inventory in Dora's estate did not list the real estate numbered 105 and 107 Market Street, Portsmouth. The final account in Dora's estate was allowed July 2, 1964 showing a balance of $14,280.70 to be distributed. The certification by the probate court was approved August 16, 1965.
Griffin, Harrington, Brigham Taylor (Mr. Lindsey R. Brigham orally), for the administratrix with will annexed of the estate of Jacob Segal.
Arthur J. Reinhart for Ruth Kovnit, filed no brief.
The pivotal issue in this case is the nature and extent of the estate given to the testator's wife in clause 1 of the will. "Standing by itself the bequest to the widow would be sufficient to pass the fee. Brown v. Eastman, 72 N.H. 356, 358." Grant v. Nelson, 100 N.H. 220, 221. See Sanborn v. Clough, 64 N.H. 315, 320. But it is familiar law that the clauses in a will are not read in isolation and their meaning is to be determined from the language of the will as a whole. Athorne v. Athorne, 100 N.H. 413, 415; Grant v. Nelson, supra; Fowler v. Whelan, 83 N.H. 453, 456.
Although the will contains some ambiguity and opacity, this is not cause for despair by this court. The general approach in this jurisdiction was summarized by In re Lathrop Estate, 100 N.H. 393, 395 as follows: "Arbitrary canons of construction give way to a single broad rule of construction that always favors rather than opposes the testamentary disposition and, whenever consistent with the terms of the will as a whole, adopts that construction that gives the maximum validity to the testamentary disposition. . . . This constructional preference for the maximum validity of the testator's dispositive plan applies to all wills. No distinction is made whether the will is `crudely drawn' (Adams v. Hospital, 82 N.H. 260, 261) . . . or whether the will is drawn with legal assistance with some ambiguity (Roberts v. Tamworth, 96 N.H. 223), or without legal assistance with some ambiguity (Wilkins v. Miltimore, 95 N.H. 17, 18)."
Clause 1 of the will gave the widow all of her husband's estate for her use forever. There may be cases where the will discloses that a gift of the use of property is a direct gift of the property itself. Ruel v. Hardy, 90 N.H. 240, 242; Wilkins v. Miltimore, 95 N.H. 17, 19. But in the present case it is evident that if clause 1 is construed as passing a fee simple interest to the widow, the remaining clauses of the will are ignored. This militates against construing clause 1 in that manner. On the other hand clause 1 indicates that the widow's interest was not limited to a conventional life estate. Construing clause 1 in the light of the whole testamentary plan, here as in Grant v. Nelson, 100 N.H. 220, 222, the "will . . . disclosed an intention that she should have the power to dispose of the estate without restriction during her lifetime." Simes Smith, Future Interests, s. 1489, pp. 390-391; Annot. 17 A.L.R. 2d 7.
The widow's "interest was more than a conventional life estate but less than an absolute fee simple interest." Quinn v. Turtle, 104 N.H. 1, 3. Consequently it follows that the widow had the authority to convey the "real estate numbered 105 and 107 Market Street, Portsmouth" equally to her six children, including the daughter Ruth Kovnit. Lord v. Roberts, 84 N.H. 517; McPhee v. Colburn, 98 N.H. 406, 410.
Remanded.
All concurred.