Opinion
No. 3762.
Decided November 3, 1948.
Where the testator first specifically provided for a per stirpes distribution of the income from a trust to a particular class, i.e: the legal heirs of his nieces and nephews, his direction that "from and after" the death of the last member of that class the remainder should go to their "legal heirs" indicates his intent, under all the circumstances, that those heirs who should share in the final distribution should be determined as of that time. The fact that in the creation of the first estate the testator specifically provided for a per stirpes distribution of the income while in the creation of a second estate of the remainder he simply used the words "equal shares" indicates an intention thereby to distribute the remainder per capita. Where the final distribution of an estate consisting of both real and personal property "in equal shares" would involve practical difficulties, the testator is deemed to have intended to authorize his representatives to convert the assets into cash.
PETITION for advice brought by the plaintiff as trustee under the will of George E. Seavey asking for instructions as to the distribution of the corpus of a trust fund established under the fifth clause of the will. The material portions of the will read as follows:
"Second. I give and bequeath to my niece Nancy J. Wilson the sum of one thousand dollars, to my other nieces Alice Peabody, Annie Bushway and Josie Martin the sum of five hundred dollars each and to my nephew Lewis B. Seavey the sum of three thousand dollars. . . .
"Fifth. From and after the termination of the life estate of my said wife Mary B. Seavey, I give, bequeath and devise the remainder of my estate to William L. Emerson of Windham, N.H. and Benjamin T. Bartlett of Derry, N.H. in trust nevertheless for my said nieces Nancy J. Wilson, Alice Peabody, Annie Bushway and Josie Martin and for my nephew Lewis B. Seavey, the income thereof to be paid to them, or per stirpes to the heirs of such of them as may decease, each year in equal shares during the natural life of said nieces and nephew or the survivor of them.
And I do hereby empower said trustees to sell or dispose of and convey any or all of my remaining real estate at public auction or private sale upon such terms and in such manner as to them shall seem best for the proper execution of said trust.
"Sixth. Said trust shall terminate upon the decease of my last surviving niece or nephew and from and after the termination of said trust I give bequeath and devise the remainder of my said estate to the legal heirs of Nancy J. Wilson, Alice Peabody, Annie Bushway, Josie Martin and Lewis B. Seavey in equal shares, to them and their heirs forever."
At the time the will was signed, on June 1, 1910, the testator in addition to the named nieces had another, Sarah J. Brothers, living. She was then about thirty-two years old and younger than any of the other nieces by some six years. The date of birth of the nephew Lewis is unknown but the probabilities are that he was born before 1886. Upon the date of the will Lewis was unmarried, Nancy Wilson was fifty-eight and childless, Annie (Peabody) Bushway was married and had eight children living, Jessie Peabody, known to the testator as Josie Martin, was married and had one child and Alice was unmarried and childless.
Lewis, the last survivor of the class named in the will died childless March 26, 1947. At that time there were living eleven direct descendants of two of the named nieces, viz: Earl Martin, son of Josie; Clara Jarrett, Agnes Gallien, Annie E. Bushway, and Alice Saunders, daughters of Annie Bushway; Charles W. Saunders, Jr., John P. Saunders, Thomas H. Saunders and Paula Ann Saunders, all being the children, the latter three minors, of Hazel Bushway, deceased daughter of Annie Peabody; Eugene Bushway and Dorothy Normandeau, children of Ida also a deceased daughter of Annie Bushway. In addition to these Sarah J. Brothers and Earl Hight, husband of Amy Bushway, deceased daughter of Annie Bushway, were still living.
Earl Martin claims one-half the corpus on the theory that the words "legal heirs" meant only children of the named nieces and nephew, and that the division should be per stirpes. He would therefore divide the estate one-half to himself and the other half to the children of Annie Peabody regardless of when the remainder vested. The heirs of Annie claim that they are entitled to take per capita as members of the class and that the remainder did not vest until the death of Lewis. Sarah Brothers contends that she is entitled to two-fifths of the estate since she is first cousin and only heir of Lewis and of Nancy. She maintains that the division should be per stirpes and that the legal heirs should be determined upon the death of Lewis. Clara Jarrett, Agnes Gallien, Annie E. Bushway and Alice Saunders claim that the remainder vested upon the death of Lewis and should be divided in seven shares, they each taking one, the children of Hazel Saunders dividing another, the children of Ida Bushway a sixth share and Earl Martin the seventh. The children of Hazel Saunders, while agreeing that the heirs are to be determined upon the death of Lewis, contend that the estate should be divided into eleven equal shares on the ground that the testator intended a per capita distribution. All the litigating parties with the exception of Sarah Brothers claim that she should receive nothing as such was the testator's intent. Further facts appear in the opinion. Transferred by Wescott, J.
Green, Green Romprey for the trustee, filed no brief.
John W. Perkins, Everett P. Holland (by brief), for Earl A. Martin.
Frederick J. Grady (by brief), for Sarah J. Brothers.
J. Morton Rosenblum (by brief), guardian ad litem for John P. Saunders, Thomas H. Saunders, Paula Ann Saunders, minors, and for Annie E. Bushway, Alice Saunders and Eugene Bushway.
Albert Terrien (by brief), for Clara Jarrett.
Grinnell Grinnell (by brief), for Agnes Gallien, Charles M. Saunders, Jr., and Dorothy Normandeau.
The task of determining the testator's intent in this case is not easy as plausible and able arguments are marshalled for several views. However, the matter must be decided by a balance of probabilities as shown by the surrounding circumstances including the will itself. Osgood v. Vivada, 94 N.H. 222; Rowe v. Rowe, ante, 241, and cases cited. The questions to be answered appear to be as follows: When did the devise of the remainder vest, and to whom and in what proportions should it go? The trustee also desires instructions as to whether the assets shall be converted into cash or distributed in their present form.
All parties agree that the gift to the legal heirs of the nieces and nephew was to a class but the time as of when the members shall be ascertained is disputed. It seems upon examination of the situation that the testator crested two estates. In the first the beneficiaries and the conditions upon which they were to take are meticulously and fully described. The testator was careful to provide for a per stirpes distribution of the income to the heirs of any member of the class who died pending the termination of the trust, doubtless having in mind that some were childless and likely to remain so while another had eight children. He also provided for the disposal of the real estate if necessary to the proper execution of the trust. "From and after" the death of "my last surviving nieces or nephew," and it is fair to assume that he meant the named nieces and nephew, the testator created a second estate willing everything outright to the "legal heirs" of the named nieces and nephew in "equal shares." There is no per stirpes or other qualifying provision here and it appears the keen personal interest of the testator in any individual ceased with the death of the last member of the group for whose welfare he was so solicitous. It is as though he said "I wish certain things done as long as any of my favorites are alive but after that let the law take its course and give the property to whomsoever their legal heirs may be at that time." The testator knew that final distribution might be in the distant future and that he could not foresee who the legal heirs might be. His direction that "from and after" the death of the last member of the favored group the remainder should go to their "legal heirs," together with the other circumstances mentioned, indicates his intent that those heirs who should share in the distribution should be determined as of that time. See Holmes v. Alexander, 82 N.H. 380, 383, and cases cited; O'Brien v. O'Leary, 64 N.H. 332, and cases cited; Burpee v. Pickard, 94 N.H. 307, 309.
He must have realized that Sarah Brothers being the youngest of the nieces and nephew with the possible exception of Lewis Seavey, the exact date of whose birth is unknown, might outlive all of them — which she has done. Had he desired her to be excluded in the final distribution he could have said so. His failure to do this shows clearly the probability that he was willing she should share if she survived.
It also appears that the testator intended finally a per capita distribution. The insertion of the per stirpes provision in the fifth clause of the will and not in the sixth, coupled with an apparent willingness to let the law take its course at this time all point that way. See Cuthbert v. Laing, 75 N.H. 304; Farmer v. Kimball, 46 N.H. 435.
Whether the assets should be liquidated or an attempt made to distribute them as they are is again a question of the testator's intent. It seems probable that the testator, having in mind the practical difficulties of a division of the estate, including both real and personal property in "equal shares," intended to authorize his representative to convert the assets into cash. See Upton v. White, 92 N.H. 221. The trustee is advised accordingly to convert the estate into cash and distribute it in twelve equal shares to the following: Sarah J. Brothers, Earl Martin; the four surviving children of Annie Peabody Bushway; the two children of Annie's deceased daughter Ida; Charles W. Saunders, Jr., son of Annie's deceased daughter Hazel; and three shares to J. Morton Rosenblum, as guardian ad litem of the three minor children of Hazel.
Case discharged.
All concurred.