Opinion
Decided May 7, 1929.
A devise to trustees for the support and benefit of testator's son, though without limitation over upon his decease, vests the remainder in the son. During the lifetime of the testator's heir one who stands in the relation of heir to him and not heir to the testator has no interest as such to contest the will; and not being a person "aggrieved" by the allowance of the will within the meaning of P. L., c. 311, s. 1, is not entitled to appeal therefrom.
PROBATE APPEAL, from the allowance of the will of Henry S. Bailey. Issues relating to testamentary capacity were raised but not submitted to the jury, since the proponents' motion to dismiss the appeal on the ground that the appellant (a brother of the testator) was not a "person aggrieved" by the decree of the probate court within the meaning of P. L., c. 311, s. 1, was granted.
The decedent was survived by a widow and a son who is a mental defective. The will was admitted to probate October 28, 1926, and proved in solemn form October 31, 1927. The widow died March 16, 1927. By the terms of the will the testator gave his wife a life estate in all his property. At the termination of the life estate the property was bequeathed and devised to one of the executors in trust for the benefit and support of the testator's son. The residue was left to the executors, who are nephews of the testator's wife. Another will, executed five years before the will in question, was introduced in evidence. The two wills are substantially the same, except that the earlier will contains no residuary clause.
Transferred by Sawyer, C. J., on exception to the granting of the proponents' motion to dismiss.
Stanton Owen and Fred S. Wright, for the appellees.
Scott Sloane and John F. Cronin (Mr. Sloane orally), for the appellant.
If the appellant is not aggrieved by the decree, his appeal must be dismissed, and he is not aggrieved unless he has some interest which will be concluded by the allowance of the will. P. L., c. 311, s. 1; Worthen v. Railroad, 77 N.H. 520; Bennett v. Tuftonborough, 72 N.H. 63, 64.
Under the earlier will, which would be in force if the appeal should be sustained, whatever sum remained in the hands of the trustee after the death of the testator's son would go to the son's heirs. Clyde v. Lake, 78 N.H. 322; Rollins v. Merrill, 70 N.H. 436; Sawyer v. Banfield, 55 N.H. 149.
"A contestant of a will must have some direct legal or equitable interest in the decedent's estate, in privity with him, whether as heir, purchaser, or beneficiary under another will, which would be destroyed or injuriously affected by the establishment of the contested will." Braasch v. Worthington, 191 Ala. 210, 213, 214.
The suggestion that the appellant's interest is direct, since the testator's son by reason of his incapacity must die intestate, is untenable. The interest which a person must possess to enable him to attack the validity of a will is such that if he prevails in the contest he will be entitled to a distributive share in the testator's estate. Angell v. Groff, 42 D.C. (App. Cas.), 198, 201. The contestant does not bring himself within this rule.
"Under statutes generally a proceeding to contest a will can be maintained only by a `person interested' or by a person `aggrieved' at the time the will is admitted to probate." Crowell v. Davis, 233 Mass. 136, 139. See Storrs v. Hospital, 180 Ill. 368. At the time of probate in the present case the testator's wife was still living. But the appellant is no better off if his interest at the time of contest controls. He is not a beneficiary under the former will, as was the case in Morey v. Sohier, 63 N.H. 507. Nor is he one of the testator's heirs. His status is merely that of heir presumptive to the testator's son, and it is the general rule that during the lifetime of the testator's heir, one who stands in the relation of heir to him has no interest as such to contest the will. Braasch v. Worthington, supra; Angell v. Groff, supra; Taft v. Hosmer, 14 Mich. 249; Cornwell v. Cornwell, 11 Hump. (Tenn.), 485, 487; L.R.A. 1918 A 456.
Exception overruled.
All concurred.