Weed v. White , 81 N.H. 197 ( 1924 )

While the draftsman of the will may not have been particularly expert in the use of language, the testator's meaning is clear. Huckins and Susan French were to have the income from the two sums of $2,500 and $3,000 as long as they lived. Ellen, the daughter, is given not the income on the remainder of the corpus but the remainder of the net income after paying to Huckins and Susan the sums set apart for them. The death of Susan relieving the income of the payment to her, increased the remainder payable to Ellen, as it was later further increased by the cessation because of his death of the payment to Huckins. The will says this in express terms. Ellen is to have "all the remainder of said net income whether the same shall accrue before or after the decease of said Susan F. French and Harry Huckins or either of them." The remainder of the income accruing before the death of either was what was left after their legacies were satisfied. The remainder accruing after the death of both is the whole income, because there is nothing to be deducted.

The trustee is therefore advised to pay the income of the fund to Ellen Louise White as long as she lives. There can be no distribution of the corpus of the fund while she lives and the trustee has now no occasion for advice thereto. Flanders v. Parker, 80 N.H. 566; Haynes v. Carr, 70 N.H. 463, 484; Stevens v. Douglass, 68 N.H. 209, 210; Gafney v. Kenison, 64 N.H. 354, 357. In the last clause of the portion of the will under consideration the testator apparently had in view only the contingency of the death of the daughter, Susan and Harry or one of them surviving, and only in that event makes provision for the disposition of the corpus of the fund in case the daughter did or did not leave children. As the precise contingency with reference to which these provisions of the will were drafted can never occur, it may be doubtful if they are of any effect. But whatever view may be taken of the testator's purpose, Carl Hayes can have no claim until after the death of Ellen leaving no children surviving. There is no occasion to consider his rights until that event occurs, if it ever does.

Case discharged.

All concurred.