Opinion
No. 5601.
Argued April 4, 1967.
Decided June 30, 1967.
1. In a bequest of the residue of the testatrix' estate in equal shares unto two named legatees "to them and their heirs and assigns," where the two legatees had a natural relationship to each other and constituted a family group which was associated with the testatrix in a common and mutual connection, it was held to have been the intent of the testatrix as determined from the will as a whole and the attending circumstances to die testate as to all her property and that the residue be confined to the named legatees, and that the class gift concept would carry out this intent.
2. It is not necessary to the class gift concept that the legatees be blood relatives of the testatrix.
Certification of questions of law from the probate court of Strafford county (Galanes, J.) to the Supreme Court pursuant to RSA 547:30. Ethel W. Devin died on December 13, 1964 leaving a will, which in nineteen separate clauses, provided for the payment of debts and funeral expenses, made eleven specific monetary bequests to individuals, made five charitable bequests including one to Smith College, provided for perpetual care of a cemetery lot, and bequeathed her eyes to a hospital.
The residuary clause read as follows: "Twentieth: — All the rest, residue and remainder of my property of every name and nature and wherever found, including both real and personal property, I give, bequeath and devise in equal shares unto Sarah L. Frost and Elizabeth R. Frost, to them and their heirs and assigns."
Sarah L. Frost predeceased the testator on September 16, 1964 without issue and therefore left no heirs in the descending line. RSA 551:12. Elizabeth R. Frost survived the testator as did Martha Staples Conway, a second cousin and closest relative of the testator, who would take any property passing by intestacy. Martha Conway died on February 19, 1965, testate, leaving her daughter Dorothea Blaine sole beneficiary and executrix. Elizabeth R. Frost died on April 2, 1966.
The executrix under the will of Ethel Devin, being uncertain whether all the residue should be distributed to the estate of Elizabeth R. Frost or whether half should be distributed to the estate of Martha Conway, filed a petition for instructions in the probate court which, prior to entry of a decree of distribution, certified the following questions to us: "1. Does the share of Sarah L. Frost in the residue of the Estate of Ethel W. Devin lapse? 2. If said share of Sarah L. Frost lapses, does the same pass to Elizabeth R. Frost as a class gift or to Martha Staples Conway by intestate succession?"
Calderwood, Silverman Ouellette (Mr. Raymond R. Ouellette orally), for the executrix as amicus curiae.
Burns, Bryant, Hinchey Nadeau (Mr. Donald R. Bryant orally), for Elizabeth R. Frost estate.
Frank W. Peyser, guardian ad litem, filed no brief.
The residuary clause is ambiguous in the light of the contingency which has occurred. "The testatrix's intention, proved by competent evidence, is her will, and is not to be defeated by rules of construction." Silsby v. Sawyer, 64 N.H. 580, 585. We determine that the will as a whole when read in the light of all the attending circumstances shows that the testatrix desired that the residue of her estate should be confined to the residuary legatees. We apply the class gift concept to effectuate her real purpose, even though the language of the residuary clause is not ordinarily calculated to create a class gift. Roberts v. Tamworth, 96 N.H. 223; Annot. 36 A.L.R. 2d 1123; 2 Simes Smith, Future Interests (2d ed.) s. 613; 57 Am. Jur. Wills, ss. 1258, 1453; Cooley, What Constitutes a Gift to a Class, 49 Harv. L. Rev. 903; Fowler v. Whelan, 83 N.H. 453. In this case, contrary to the situation in Upton v. White, 92 N.H. 221, the extrinsic evidence shows that the testatrix intended that the survivor should take all the residue.
Sarah L. Frost and Elizabeth R. Frost, both graduates of Smith College, were sisters of Mary Frost Sawyer who was a classmate and roommate of Miss Devin at Smith College. Sarah and Elizabeth, both unmarried, lived together in Dover within a half mile of the testatrix. After the death of Mary, they were her closest friends and they saw a "good deal of each other." She was also very friendly with the only heirs of Sarah and Elizabeth, their nephews and grandniece and grandnephew, to each of whom she bequeathed a sum of money. Because they were so friendly and lived so close, the testatrix must have known of Sarah's death three months before hers and knew she had no heirs in the descending line.
Unlike the situation of the legatees in Upton v. White, supra, Sarah and Elizabeth Frost had a natural relationship to each other and constituted a family group which was associated with the testatrix in a common and mutual connection. They had common attributes in their relation to the testatrix and to each other. 96 C.J.S., Wills, s. 693, p. 28. It is not necessary to the class gift concept that the legatees be blood relatives of the testatrix. Krog v. Hafka, 413 Ill. 290; Kirkland v. Moseley, 109 S.C. 477; Jennings v. Newman, 359 Mo. 276.
Miss Devin knew that Martha Conway, who lived in Spokane, Washington, and to whom she bequeathed $5,000, was her closest relative. If Miss Devin had intended that Martha Conway should take part of the residue in the event one of the Frost sisters predeceased her, it is improbable that she would choose to let it pass by intestacy instead of saying so in the will. The language of the residuary clause and the extrinsic evidence show an intention to die testate as to all of her property and that the residue be confined to the residuary legatees. Fowler v. Whelan, supra. In so deciding, we give due weight to the presumption against partial intestacy. In re Segal Estate, 107 N.H. 120; Merchants c. Bank v. Berry, 93 N.H. 388.
We dispose of the certified questions by holding that the entire residue passes to the estate of Elizabeth R. Frost.
Remanded.
All concurred.