Fuller v. Gale , 78 N.H. 544 ( 1918 )

By the gift of a legacy "for each grandchild I may leave surviving me, whether now or hereafter born," the testatrix manifested a desire to provide for every grandchild whose identity could be established at the time of her death. The grandchild born four months later could be so identified. The law regarded it as a person in being for many purposes, and the language of the will indicates a wish to provide for it. Having designated the beneficiaries as those "I may leave surviving me," the testatrix adds the words "whether now or hereafter born." The latter words are without meaning unless applied to the present situation. It is probable that they were inserted to make sure that any grandchild en ventre at the testatrix's death should take under the will. It is argued that the will speaks as of the date of the testatrix's death, and must be construed accordingly. If this rule of construction is to be applied, it is conclusive in favor of the after born grandchild. Speaking as of that date, the words "whether now or hereafter born" must of necessity apply to the situation here presented. The executor is advised that Arthur Francis Gale takes under the seventh clause of the will.

The question whether grandchildren who may hereafter be conceived and born could take under this clause is answered in the negative. The takers are not all those who may live at some period subsequent to the death of the testatrix. They must also have been in esse at the time that event occurred.

The claim made in behalf of the two grandchildren, Medora and Deborah Gale, that interest on the legacies to them should be allowed from the death of the testatrix is not a valid one. There is nothing in the will indicating any intent to vary the usual rule, and there is no evidence that the testatrix stood in the position of a parent toward these legatees. Doten v. Doten, 66 N.H. 331.

The estate tax imposed by act of congress is to be paid pro rata by all who share in the estate. It is not a property tax but one "imposed upon the transfer of the net estate." Laws 64th Cong. 1st Session, c. 463, s. 201. It is not like the foreign inheritance taxes considered in Kingsbury v. Bazeley, 75 N.H. 13, 16; but is imposed by a law which applies to the devolution of estates in this jurisdiction. It not being otherwise directed by the will, the tax is to be paid out of the estate and charged pro rata to each beneficiary.

Income taxes and annual property taxes imposed before the time for the distribution of the estate are to be paid out of the estate and are finally a charge upon the residue. The income before legacies fail due accrues to the estate, and so to the residuary legatees, and they, like others who have the use or income of property, must pay the ordinary taxes.

The provision that "the real and personal estate of any legatee . . . shall be taxed to the . . . administrator" (P. S., c. 56, s. 27), is relied upon to show that the tax is a charge against the legatees' estate. The provision has no application to the present case. The legacies here were all general and did not become the estate of, the legatees before they were payable. The property was the estate of the deceased, taxable under the provisions of P. S., c. 56, s. 26.

Case discharged.

All concurred.