Cram v. Cram , 63 N.H. 31 ( 1884 )

The plaintiff asks for her support from the income of the farm of her deceased husband, and bases her claim upon the second item in his will, which is as follows: "I give and bequeath to my beloved wife Martha T. Cram all my household furniture, also the use of the rooms in the house we now occupy viz. kitchen, meal-room and pantry, dining-room and east parlor, the attic stairs, hallways, cellar and back part and cistern, to be used as now in common, to hold the same to her for and during the term of her natural life; also she is to have the use of a horse and carriage whenever she desires and a liberal support from the income of the farm; at her decease the portion of the house above mentioned is to go to my son Frank P. Cram, his heirs and assigns." By a subsequent provision, Frank P. Cram is made residuary legatee.

The plaintiff's claim is, that the liberal support provided for her is a charge upon the land, and that she is entitled to it wherever she may be. The validity of these claims is determined by the testator's intention as expressed in the will and codicil, and this intention is to be determined as a question of fact by the natural weight of competent evidence. Rice v. Society, 56 N.H. 191, 197, 198, 203; Houghton v. Pattee, 58 N.H. 326; Morse v. Morse 58 N.H. 391; Brown v. Bartlett, 58 N.H. 511; Wilkins v. Ordway,59 N.H. 378.

We think it was the intention of the testator that the liberal support provided for his wife should be a charge upon the land. The son took the residue of the estate after the payment of the legacies, and the estate thereby became subject to their payment. This made them a charge upon the land. Piper v. Piper, 2 N.H. 439; Wallace v. Wallace, 23 N.H. 149; Clough v. Elliott, 23 N.H. 182.

The testator gives the plaintiff certain portions of the house, the same as he and she were then occupying, and all the household furniture, for and during her natural life, showing by this provision his understanding that she was to remain at the old home. In the same clause he gives her the use of a horse and carriage whenever she desires. It was not his intention to require the son to pay for a horse and carriage wherever she might be and whenever she should desire it. The testator owned and occupied a farm. Doubtless he had kept a horse, and he and the plaintiff had been accustomed to use it for their comfort and convenience as they chose; and having given the farm to his son, and expecting him to remain upon it, as he was then living there with his parents, he also expected him to provide for his mother as she had been provided for, and that she would have the use of a horse and carriage as she had been accustomed to have it. The bequest of the household furniture and certain parts of the house for life confirms the view that the testator understood and expected that his wife was to remain with the son upon the farm, and that the furniture was for her use there, and that the liberal support given to her was for her on the farm, and not elsewhere. The idea uppermost in the testator's mind was, that his wife should be supported and cared for at the old home, where his last days were passed, and this idea is made apparent by, on the one hand, giving her certain rights there, and, on the other, requiring the son to support her there. The amount of the bequest is unlimited, — it is of a liberal support; and this is to be determined by the situation, surroundings, health, and needs of the plaintiff, and includes everything necessary for her comfortable support. A liberal support upon the farm might be much less than such a support in Boston, New York, or Winchester. It includes not only the necessary food, but clothing, fuel, and all those things which go to make up comfortable living. Under the view for which the plaintiff contends, if the son's personal care and attention were necessary to the liberal support of the plaintiff, he must go wherever she might chance to be, regardless of the labor or expense. No such intention is apparent from the will; on the contrary, the most natural conclusion is, that the testator intended that the liberal support should be furnished to the plaintiff at the old home, and that if she chose to remove from it without cause, she waived her claim while she remained away. What her rights would be if she should return, we need not now inquire. The case of Wiggin v. Veazey, 43 N.H. 313, has no application here. In that case the bequest was of a definite number of cords of wood, and there was nothing showing an intention to limit the place of its use. When furnished, it became the property of the legatee, and could be disposed of by her as she saw fit.

Upon the facts found in this case, the bill should be dismissed.

Exceptions sustained.

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