Benton v. Benton , 66 N.H. 169 ( 1889 )

The legacies to the residuary legatees are vested, and not contingent upon their surviving the widow of the testator. He intended to dispose of his whole estate. He gives the rest, residue, and remainder of his estate to certain legatees named in the sixth clause of the will, upon the decease of his wife, and directs his surviving executor to pay over the same to them in the same proportions as the legacies given in the sixth clause are payable. It is as though he had disposed of the residue of his estate to these legatees, payable upon the decease of his wife. Brown v. Brown,44 N.H. 281; Ordway v. Dow, 55 N.H. 11; Felton v. Sawyer, 41 N.H. 202; Burleigh v. Clough, 52 N.H. 267. If he had intended to make their taking contingent upon their surviving his widow, we should expect to find his intention expressed in apt words, and not left to be inferred. For the same reasons the legacies given by the sixth clause are vested and not contingent.

The legacies given by the sixth and residuary clauses to James G. Benton are payable one fourth to his legal representatives, one fourth to his widow, C. Louisa Benton, one fourth to his son James, and one fourth to his daughter Mary.

The two clauses construed together show that the testator's intention was, that the legacy given by the residuary clause to him should be divided between himself, his wife, and his two children, and in the same proportion as the legacy given by the sixth clause. He gives "to my brothers, nephews, nieces, and their wives before named." Thus Mrs. Benton, being the wife of his nephew, James G., is included among the persons mentioned as legatees. Their children, James and Mary, are mentioned with other relatives in the sixth clause, and were intended to be included within the terms "nephews" and "nieces," although they are grandnephew and grandniece. No reason appears for including their mother and excluding them. James G., if living, would take three fourths of the two legacies in trust for his wife and two children. The trustee being dead, the appointment of a new trustee to receive their shares merely for the purpose of paying them over to the cestuis que trust is unnecessary, when the same purpose will be attained by the executor's paying their shares directly to them.

The legacies to the four other persons who died before the widow of the testator are payable to their legal representatives.

Case discharged.

BINGHAM, J., did not sit: the others concurred.