Abbott v. Lewis , 77 N.H. 94 ( 1913 )

1. The first and second clauses of the will are entirely distinct. The duty imposed upon the trustees under the second clause is the administration of the fund during the life of the testator's widow and its distribution after her decease. The only duty now remaining is the distribution of the fund as directed in the will. If the first clause imposed a duty upon the testator's widow to make the annual payments therein requested, it imposed no duty upon the trustees of the residue under the second clause. Prior to the death of the widow, the only power given the trustees, other than that of keeping the fund securely invested, is that of paying semi-annually the income to the widow and, in the contingency of her request and its necessity, five thousand dollars of the principal annually. Payment by them to any other person would have been maladministration. The legatees under the first clause, whatever their right may be, have no claim against the fund created by the second clause, except under the latter clause.

2. Whether bequests of the residue are defeated by the death of individual legatees after the death of the testator, but before the time for distribution, depends upon the intention of the testator. Hayward v. Spaulding, 75 N.H. 92; Parker v. Ross, 69 N.H. 213. If he intended an absolute gift, the time of payment only being postponed, the gift vested at his death and the title of the representatives of the deceased legatee is valid. Dana v. Sanborn, 70 N.H. 152; Snow v. Durgin, 70 N.H. 121; Stevens v. Douglass, 68 N.H. 209, and authorities cited.

The words of the will leave no room for doubt as to the testator's intention. "Said trustees shall give to my brother, Noah, . . . ten thousand dollars." The will in effect, so far as it relates to this bequest, is as if it read: I give to the trustees ten thousand dollars upon the trust to pay the income to my wife during her life, and at her death to pay the principal to my brother, Noah. It is the simple case of a remainder, or limitation over of personal estate, dependent upon a life estate which must expire by efflux of time. The remainder vests as soon as there is a person in being capable of taking upon the expiration of the life estate. That the remainder may never come to the possession of the remainderman because of his death before the right of possession attaches, or because it may afterward be divested or the subject of the gift be destroyed, does not render the remainder contingent, because the vesting depends upon the certainty, not of possession, but of the right of enjoyment. Hayward v. Spaulding, supra; Parker v. Ross, supra; Hall v. Wiggin, 67 N.H. 89, 91; Kennard v. Kennard, 63 N.H. 303, 309, 310; Brown v. Brown,44 N.H. 281; Ladd v. Harvey, 21 N.H. 514. Here there is no contingency whatever as to Noah's right or that of the other deceased legatees, and their title vested upon the death of the testator. If it had been intended that the distribution should be made only to such of the legatees as survived the wife, it is probable such purpose would have been definitely expressed. Benton v. Benton, 66 N.H. 169. The matter was not absent from the testator's mind; for in the same clause he makes the gift to Mrs. Lewis' maid dependent upon her employment at the termination of the trust, and the gift to the employees of his corporation upon the fact of their employment at his death. Had the testator intended to condition his gifts upon survivorship until the termination of the trust, the weight of the evidence furnished by this carefully drawn document is clearly upon the side of the conclusion that such purpose would have been definitely stated.

3. As the testator had knowledge of the existence of Mabel E. Benjamin, a granddaughter of his brother, John V. Lewis, and never knew of the existence of either of the other two grandchildren of John V. Lewis, it is probable that he meant the granddaughter of whom he knew by the expression "granddaughter of my brother, John V. Lewis." As it appears there is more than one person answering the description in the will, parol evidence is competent to determine which was meant. Tilton v. Society, 60 N.H. 377, 383.

4. Ada Rice was not discharged from employment as Mrs. Lewis' maid. The evidence tends to prove merely a temporary absence on account of illness. Mrs. Lewis expected and desired the renewal of active service when renewed health permitted. The relations of confidence and friendship which would be implied from continued employment still existed; and as it was not understood that the employment was definitely terminated, upon the facts stated the maid is entitled to the legacy.

5. The question who are meant by "employees" in the clause giving ten thousand dollars to be distributed among the employees of the O. J. Lewis Mercantile Company has not been argued by counsel. The word employee is defined in Webster's Dictionary as "a clerk or workman in the service of an employer, usually distinguished from official or officer, or one employed in a position of some authority." To the same effect see the Century Dictionary. The synonyms of the word are given by Soule as "agent, clerk, servant, hand," apparently implying service in an inferior capacity. While any one employed by a corporation in any capacity may perhaps be considered an employee of the corporation (and if from the context such appeared to be the meaning, the officers of the corporation might be intended by the term under some circumstances), such is not the meaning of the word as ordinarily employed. 10 Cyc. 1032, 1033. It is not probable that the testator intended that its Boston agent, its counsel who was also a director, its treasurer, or its New York representative should share in the distribution of the ten thousand dollars. Especially is this apparent when account is taken of the fact that to each of these except the New York representative a specific bequest of ten thousand dollars is given. It is more probable that the testator meant the employees in less responsible and less honorable positions. None of these officials have appeared to claim that they were employees of the corporation within the meaning of the word as understood by the testator, and the trustee is advised that they are not entitled to share in the distribution of the ten thousand dollars given to employees.

Miss Tillie, the stenographer, is given a special bequest of five hundred dollars, but it does not appear that she held any office in the corporation, nor does any ground occur upon which to distinguish the position of stenographer from that of bookkeeper or other clerk. The special gift to her is some evidence that it might not have been intended she should share in the general one, but it is not sufficient to authorize a finding of an expressed intention to exclude her from the class ordinarily embraced by the term employed, into which her occupation properly falls. She is included within the term "employees" and entitled to share in the gift to them.

Case discharged.

All concurred.