Opinion
No. 4687.
Argued December 2, 1958.
Decided January 30, 1959.
1. Where the testator bequeathed the residue of his estate in trust and gave five-sixths thereof to certain designated beneficiaries each of whom was to receive the sum of $10,000 and also equally the net annual income of the remainder during the life of each of them and also provided "if any of said persons die leaving heirs in the descending line, then said heirs . . . shall take what each of the above would have received if living at my decease" it was the testator's intent that the status of a designated beneficiary at the time of the testator's death was determinative of the bequest to his heirs and hence an heir in the descending line of one of them was held ineligible to take the share of said designated beneficiary where such beneficiary survived the testator.
2. There being no specific provision in such will disposing at death of the share of a designated beneficiary who survived the testator it was his apparent intent from his expressed intentions in the whole will that such share was intended to be a gift over to certain named charities.
PETITION, by a trustee for construction of a will. The questions propounded by the plaintiff all pertain to the construction, meaning and effect of paragraph XIII of the will of William G. Berry, who died on July 2, 1943. A previous petition for the construction of this same paragraph was decided in Merchants c. Bank v. Berry, 93 N.H. 388.
Paragraph XIII reads as follows:
"XIII. All the rest, residue and remainder of my estate, real, personal or mixed, wherever found and however described, I give, bequeath and devise to the Merchants National Bank (Trust Department) of said Manchester, in trust, however, and to be known as the William G. Berry Trust Fund No. 3, said trust fund to be divided into six equal parts for the purposes hereinafter stated:
"(a) One-sixth of said William G. Berry Trust Fund No. 3, I direct my said trustee to pay in equal shares to Marion Butler Eastman, Harriet Butler Salinger, Mary Colbath, and the Manchester District Nursing Association of Manchester, New Hampshire, and if any of said legatees mentioned in this clause are not living at the time of my death, then their share shall be paid in equal parts to the remaining legatees then living. Such part of said fund as is bequeathed to the Manchester District Nursing Association of said Manchester, shall constitute an endowment fund to be known as the William G. Berry Fund, such fund to be kept invested by the said Association and the net annual income thereof used for the benefit of crippled children in Manchester, New Hampshire and Pittsfield, New Hampshire.
"(b) Each of the remaining five parts of said William G. Berry Trust Fund No. 3, I hereby give and bequeath as follows: To Mabel R. Berry, Laura Offutt, Harriet Denham, Mary Hamilton and Arthur D. Berry, each the sum of ten thousand ($10,000) dollars, and also equally the net annual income of the remainder thereof quarterly during the lifetime of each of said persons, and if any of said persons die leaving heirs in the descending line, then said heirs in the descending line shall take what each of the above would have received if living at my decease. If any of the above-named leave no heirs in the descending line, then I give and bequeath his or her share to the Merchants National Bank (Trust Department), in trust, however, to be known as the William G. Berry Trust Fund No. 4, and I direct said trustee to pay one-fourth part thereof to the Manchester District Nursing Association of said Manchester, which shall constitute an endowment fund to be known as the William G. Berry Fund, such fund to be kept invested by the said Association and the net annual income thereof used for the benefit of crippled children in Manchester, New Hampshire and Pittsfield, New Hampshire.
"I further direct said Trustee to pay one-fourth part thereof to the New Hampshire Association for the Blind, a corporation having a principal office at Concord, New Hampshire, to constitute an endowment fund to be known as the William G. Berry Fund, such fund to be kept invested by the New Hampshire Association for the Blind, and the annual income thereof used for the benefit of the Association in such manner as the directors thereof may direct.
"I further direct said Trustee to pay one-fourth part thereof to the Gale Home, located at 133 Ash Street, Manchester, New Hampshire, to constitute an endowment fund to be known as the William G. Berry Fund, such fund to be kept invested by said Gale Home and the annual income thereof used for the benefit of said Home in such manner as the directors thereof may direct.
"The remaining one-fourth part thereof I direct said Trustee to hold in trust and to be known as the William G. Berry Trust Fund No. 5 for the benefit of the Congregational Church of Pittsfield, New Hampshire, and to perpetuate the memory of my father, William H. Berry, and my mother, Laura O. Berry.
"And I direct my said Trustee to keep insured at all times the buildings of said Church property in a sum not less than seventy-five per cent, (75) of their true value and to pay out the remaining part of the annual net income of said fund to said Church for its use for the benefit of said Church in such manner as the directors thereof may direct."
All questions of law raised by the petition were reserved and transferred without ruling by Leahy, C. J.
Booth, Wadleigh, Langdell, Starr Peters for the plaintiff, furnished no brief.
Wiggin, Nourie, Sundeen, Nassikas Pingree (Mr. Wiggin orally), for George Berry Hamilton, individually, as administrator of Mary Hamilton and as representative of Joan and Cynthia, his minor daughters.
Joseph J. Betley, pro se, guardian ad litem, furnished no brief.
Herbert W. Rainie for New Hampshire Association for the Blind, furnished no brief.
Ernest R. D'Amours, Director of Charitable Trusts (by brief and orally), pro se.
Upton, Sanders Upton and Wesley E. Whitney (Mr. Whitney orally), for First Congregational Church of Pittsfield.
Arthur D. Berry one of the five named legatees in said paragraph XIII (b) died before the testator leaving as his sole heir in the descending line his son Richard F. Berry. It was held in Merchants c. Bank v. Berry, 93 N.H. 388, 392, that Richard was entitled to the sum of $10,000 and "that he be given also a part of the income of five-sixths of the residue of the estate after the sum of $50,000 has been paid and any disbursement made to Trust Fund No. 4 . . . equally with the living named beneficiaries."
Mabel R. Berry another named beneficiary also predeceased the testator but left no heirs in the descending line. It was held that "her share," determined to be the sum of $10,000 and one-sixth of the residue, should be paid into Trust Fund No. 4. Id., 393.
Mary Hamilton also a named beneficiary died intestate on March 28, 1957, leaving as her sole heir, her son, George Berry Hamilton whose only potential heirs in a descending line at the present time are two minor daughters, Joan and Cynthia. Her death brought about the present petition.
George Berry Hamilton takes the position that as the only heir in the descending line living at the decease of his mother he is entitled outright to the one-sixth share of the residue of which she was receiving the income during her life. The Director of Charitable Trusts and the First Congregational Church of Pittsfield maintain that said share goes into Trust Fund No. 4. They all agree in the contention that this share becomes free of Trust Fund No. 3 at the decease of Mary Hamilton.
In said paragraph XIII of his will the testator bequeathed "All the rest, residue and remainder" of his estate. After disposing of one-sixth thereof "each of the remaining five parts . . . I hereby give and bequeath as follows: To Mabel R. Berry, Laura Offutt, Harriet Denham, Mary Hamilton and Arthur D. Berry, each the sum of ten thousand ($10,000) dollars, and also equally the net annual income of the remainder thereof quarterly during the lifetime of each of said persons, and if any of said persons die leaving heirs in the descending line, then said heirs in the descending line shall take what each of the above would have received if living at my decease."
Each of the named beneficiaries is given thereby $10,000 outright and a share of the net annual income of the remainder for life. The only way in which an heir in the descending line can "take what each of the above would have received if living at my decease," is if he replaces the named beneficiary at the death of the testator. Otherwise the heir would not receive the sum of $10,000 (payable to the designated beneficiary if living at testator's death) and thus could not and would not "take what each of the above would have received if living at my decease." Furthermore in many of the clauses of his will (II, III, V, VII, IX, XIII (a)) the testator provided that the status of the designated beneficiary at the time of the testator's decease was determinative of the bequest. We are of the opinion that the only situation provided by the will in which an heir in the descending line of a designated beneficiary was to take a share under paragraph XIII (b) was when the designated beneficiary predeceased the testator as was the case in Merchants c. Bank v. Berry, supra.
There is no specific provision in the will as to what disposition the testator intended to make of the share of any surviving beneficiary named in paragraph XIII (b) at the beneficiary's death, or of that of any substitute beneficiary at death. The testator's intent in this respect therefore must be determined by an examination of his will as a whole to determine what disposition is consistent with the intentions he expressed therein. See Roberts v. Tamworth, 96 N.H. 223, 227.
We agree for reasons clearly expressed in Merchants c. Bank v. Berry, supra, 391, that the testator did not intend a partial intestacy. We also agree with the statements therein made that "according to the ordinary meaning of the language of the will, the testator divided the rest, residue and remainder of his estate into six equal parts or shares" and "the disposition of each of the six parts apparently was complete." Id., 391.
It is also our opinion that the testator did not intend to create successive life estates in said residuary shares. In the other trusts which provided for the payment of a life income to certain designated beneficiaries (X, XI) there was a provision that the corpus be paid over to the ultimate beneficiary at the death of said life beneficiaries or the survivor. This pattern was intended to carry over to paragraph XIII so that at the death of each of the designated beneficiaries who survived the testator or of the substitute who replaced one of those who predeceased him that share of the residue was intended to be paid to the ultimate beneficiary free of Trust Fund No. 3.
The testator intended the corpus of the residue disposed of in paragraph XIII (b) to be distributed to one of the three classes of beneficiaries named therein. Obviously the five named individual beneficiaries could not share in the corpus of Trust Fund No. 3 because the interest of each, besides the gift of $10,000, was limited to the income of one-sixth of the Fund "during the lifetime of each of said persons."
By the specific terms of the will the "heirs in the descending line shall take what each of the above [five named beneficiaries] would have received if living at my decease." "The idea conveyed is that the heirs in the descending line take whatever the named beneficiary would have taken at any time, provided he or she outlived the testator." Merchants c. Bank v. Berry, supra, 392. Each named beneficiary by the specific terms of the will was to receive "each the sum of ten thousand ($10,000) dollars, and also equally the net annual income of the remainder thereof quarterly during the lifetime of each of said persons." There is no indication anywhere that the testator intended the substitute beneficiaries should receive more than those they were named to replace. By the terms of said paragraph XIII (b) the heirs in the descending line of a beneficiary were to take only if the designated beneficiary predeceased the testator and were to receive only what the named beneficiary would have taken if he or she had survived the testator.
Trust Fund No. 4 created in said paragraph is designed to benefit four distinct charities one of which was "to perpetuate the memory of my father, William H. Berry, and my mother, Laura O. Berry." This is the only provision made by the testator to honor their memory. It is reasonable to infer that he attached importance to it. He bestowed his name on that part of Fund No. 4 as well as on the other parts thereof destined to benefit three other charities. It is difficult to believe that the testator would create an elaborate trust of the nature of Fund No. 4 unless he definitely intended it to be the remainderman of Trust Fund No. 3 and we so hold. This conclusion is consistent with the tenor of the whole will in which the testator manifested an evident pattern of making in many instances outright gifts to certain named beneficiaries if they survived him and in most other cases giving life estates to designated beneficiaries with a gift over of the corpus to named charities.
It has already been decided that the share of Mabel R. Berry who predeceased the testator leaving no heirs in the descending line should be paid into Trust Fund No. 4. Merchants c. Bank v. Berry, supra. Richard F. Berry is a substitute of the named beneficiary Arthur D. Berry who also predeceased the testator. He "takes for his life rather than for the life of the one named." Id., 392. At his decease the one-sixth share of the residue of which he has been receiving the income will also be paid into Trust Fund No. 4. Upon the decease of Mary Hamilton the one-sixth share of the residue of which she had been receiving the income during her life became payable to Trust Fund No. 4. The same disposition is to be made at the decease of Harriet Denham of the one-sixth share of which she is receiving the income for her life and the same applies to the share of Laura Offutt at her decease.
Remanded.
BLANDIN, J., was absent; DUNCAN, J., dissented in part; the others concurred.
The chief issue presented by this petition is whether the testator intended that remainder interests in four of five shares of the residue, following separate life estates therein, should go to heirs in the descending line of the respective life beneficiaries who have survived him, or to a fund for charity which he established and identified as "Trust Fund No. 4." The view adopted by the majority of the court appears to rest upon the supposition that a gift over to charity of the remainder interests in all shares of the residue must have been intended because of a "pattern" discerned in other clauses of the will which "was intended to carry over to paragraph XIII," the residuary clause.
A different view appears to me to be required by the express language of Clause XIII (b), and by the surrounding circumstances disclosed by the record. Since the testator directed that the charitable fund should take the remainder interest in any share, the life beneficiary of which should die without heirs in the descending line, the implication is that otherwise the heirs were to take the remainder. Specifically, the will provides: "If any of the above-named [life beneficiaries] leave no heirs in the descending line, then I give and bequeath his or her share to [the plaintiff], in trust, however, to be known as . . . Trust Fund No. 4 . . . ." By inference, the testator intended that if the "above-named" persons should leave heirs in the descending line, then the heirs should take the share.
Since Mary Hamilton is survived by a son, Trust Fund No. 4 clearly cannot qualify, under the quoted provision, to take "her share." No other provision of the will entitles the charitable fund to take. Consequently I am of the opinion that Mary's surviving son was intended to take the remainder interest in her share. The same principle should apply to the other shares, the interest of the charitable fund depending upon a failure of heirs in the descending line surviving the life beneficiary of the particular share. The contrary view, to my thinking, nullifies the purpose of the quoted provision of Clause XIII (b).