Opinion
No. 4469.
Argued May 1, 1956.
Decided May 31, 1956.
In the construction of a will, the testator's intention is to be determined not from isolated passages but from the instrument as a whole.
A gift of the residue of the testator's estate to his wife with the further provision that "at her death the balance remaining to go to" his son created a life estate only in the wife with a remainder in the son.
While such bequest implied a grant of power to the wife to dispose of the residue of the estate without restriction during her lifetime the son had a vested remainder in the residue, subject to defeasance by the exercise of that power, and he could properly assign his interest to a third party.
An assignment of all the assignor's property is sufficient to convey any vested interest to which the assignor may be entitled notwithstanding the fact that its value is uncertain or difficult of ascertainment.
PETITION, for declaratory judgment brought by the administrator with will annexed of the estate of Charles H. Grant, late of Goffstown, to determine the rights of the defendant Nelson, as assignee for the benefit of creditors of the defendant Arthur J. Grant, to certain bank accounts which stood in the name of "Jennie E. Grant, Life Tenant of Charles H. Grant" at the decease of Jennie. The testator died on April 3, 1950, survived by his widow Jennie and their son, the defendant Grant. The residue of his estate, after minor pecuniary legacies to a daughter-in-law and granddaughter, was disposed of by his will as follows: "THIRD. The balance of my estate, both real and personal, wherever found and of whatever nature, I give and bequeath to my wife Jennie E. Grant. At her death the balance remaining to go to my son Arthur J. Grant."
On November 13, 1954, Arthur J. Grant assigned to the defendant Nelson for the benefit of creditors, all his "lands, tenements, hereditaments, goods, chattels, property, and rights in action . . . ." This assignment was thereafter accepted and consented to by the creditors.
Jennie E. Grant deceased testate on April 29, 1955. At her death two savings accounts which stood in her name as "Life Tenant of Charles H. Grant" represented proceeds received by her from the Charles H. Grant estate. If they were a part of her estate at her death, they pass by her will to the defendant Grant.
The questions of law presented by the petition were reserved and transferred by Grimes, J. upon an agreed statement of facts.
McLane, Carleton, Graf, Greene Brown for the administrator, furnished no brief.
J. Albert Lynch and George F. Nelson, pro se, for the defendant assignee.
McLane, Carleton, Graf, Greene Brown and Robert A. Raulerson (Mr. Raulerson orally), for the defendant Arthur J. Grant.
The issue which is decisive of the rights of the parties is whether clause "THIRD" of the will of Charles H. Grant created a life estate in his widow with remainder to his son, or whether the widow took a fee and the provisions in favor of the son were merely precatory and ineffective to transfer any title to him. By settled rule of this jurisdiction the issue is to be determined in accordance with the intent of the testator ascertained upon the competent evidence including the will itself. Standing by itself the bequest to the widow would be sufficient to pass the fee. Brown v. Eastman, 72 N.H. 356, 358. The specific bequests which preceded the residuary clause were couched in similar language, and were plainly intended to create absolute gifts. It is reasonably plain that by clause "THIRD" the testator intended to dispose of his entire interest in the residue.
However the meaning of the will "is to be collected, not from isolated passages, but from the whole instrument." Doe, C. J., in Sanborn v. Sanborn, 62 N.H. 631, 643. The clause disposing of the residue must be considered in its entirety. Its concluding provision discloses a clear purpose to benefit the testator's son. Its phraseology, "At her death the balance remaining to go to my son" is not precatory in nature. Unlike the language before the court in Brown v. Eastman, supra, it does not suggest that the testator expected his son to receive "the balance remaining" only if his widow should so provide by her will. Compare also, Holmes v. Mackie, 86 N.H. 287, 291, 293. Rather it was a positive and dispositional direction for the balance remaining "to go to" the son. Such language was sufficient to create a remainder in the son (6 American Law of Property, s. 26.59, p. 501; see Gahan v. Golden, 330 In. 624), and as used in this will showed an intention to do so. See Langley v. Tilton, 67 N.H. 88; Boulton v. Clough, 96 N.H. 404.
It follows that the gift to the widow was qualified by the concluding provisions of the clause in favor of the son, and that her estate was intended to be a life estate. 1 Tiffany, Real Property (3rd ed.) s. 52; Dennett v. Dennett, 40 N.H. 498, 501. The will likewise disclosed an intention that she should have the power to dispose of the estate without restriction during her lifetime. See Belford v. Olson, 94 N.H. 278. This is implied in the language of the gift over, which was a gift only of the "balance remaining" at her death. 3 Page on Wills 354; anno. 17 A.L.R. (2d) 7, 26, 162.
By this interpretation effect is given to the entire clause of the will, and the legatees named each stand to benefit as the testator must have intended. The title of Arthur J. Grant to the savings accounts was derived under the will of his father, and not that of his mother. McPhee v. Colburn, 98 N.H. 406, 411.
The remaining issue is whether the defendant assignee acquired the rights of Arthur J. Grant in the savings accounts in question. We are of the opinion that he did. The assignment of all of the assignor's property was adequate to convey any vested interest which he then owned. Although the assignment was given prior to the death of the life tenant, and the assignor's interest acquired by the will of Charles H. Grant was subject to defeasance by exercise of the power of disposal conferred upon the life tenant, that interest was nevertheless a vested remainder (Chisholm v. Bradley, 99 N.H. 12, 14) and clearly assignable. Kennard v. Kennard, 81 N.H. 509; Upton v. White, 92 N.H. 221, 226. See also, Merchants Nat. Bank v. Curtis, 98 N.H. 225, 233; United States v. 575.52 Acres of Land, 118 F. Supp. 923, 926. If the value of the interest was then uncertain or difficult of ascertainment, its assignment was not precluded for that reason. Peterborough Bank v. Hartshorn, 67 N.H. 156. See Clarke v. Fay, 205 Mass. 228, 235, 236.
Judgment for the defendant assignee.
All concurred.