White v. Dodge , 79 N.H. 106 ( 1918 )

Young, J.

Although there are three plaintiffs their interests are identical, consequently this case will be considered as though Mrs. White was the sole plaintiff. Whether she is entitled to a decree depends on whether the testatrix intended that she should have possession of the legacies given to her or that they should be held by a trustee as long as Arthur lived. The language the testatrix used is all the evidence there is as to her intention and if that is given its ordinary meaning it is clear that she intended Mrs. White to have the possession of the legacy given her in the 13th clause, for she says that she gives it to her “absolutely and in fee simple” charged with the payment of a part of Arthur’s annuity.

Although the testatrix says that a part of Arthur’s annuity is to be paid from the income of the legacy given Mrs. White in the 12th clause of the will there is nothing in that inconsistent with an intention that Mrs. White should hold the property. In other words, the fact the testatrix intended the legacies she gave Mrs. White to be held as a fund during Arthur’s lifetime, has no great tendency to prove she did not intend Mrs. White to hold the fund. It is probable therefore that the testatrix intended Mrs. White to hold the legacy given her in this clause of the will in the same way she is to hold the one given her in the 13th clause.

The fact the will is silent as to whether Mrs. White is or is not to secure the payment of her share of Arthur’s annuity tends strongly to the conclusion that that is a question the testatrix never considered. Since this is so, the test to determine whether the decree for Mrs. White should be conditioned on her securing the payment of the share of Arthur’s annuity with which the legacies given to her are charged depends on whether the court finds that that is or is not reasonably necessary for his protection; and that is true of the decrees for the other plaintiffs.

Case discharged.

All concurred.