Weston v. Second Orthodox Congregational Society , 77 N.H. 576 ( 1915 )

Mrs. Brown's will is not the product of a professional scrivener whose use of terms might be influenced by judicial decision as to their meaning. Reading it as the product of ordinary acquaintance with the English language, little difficulty is found in arriving at her intention. She intended to give her husband something more than a life estate, or the alternative clause, "or to dispose of for his support or benefit," would not have been inserted. If she had intended an absolute fee, the words descriptive of a life estate and remainder would have been omitted. Her purpose plainly was that he should make such use of the estate as he might deem necessary, and that at his death all not disposed of by him should go to the society. This is not an impossible estate. Shapleigh v. Shapleigh,69 N.H. 577. The power of disposal annexed to the life estate does not necessarily enlarge it to a fee and destroy the gift in remainder, contrary to the testatrix's intention. Burleigh v. Clough, 52 N.H. 267. The estate which Mrs. Brown intended her husband to have in her property being neither illegal nor impossible, her intention creates such estate irrespective of the failure to employ technical terms in its description. Hayward v. Spaulding, 75 N.H. 92.

The real estate in controversy does not pass to the residuary legatees under Mr. Brown's will. As he possessed, not a fee, but a life estate enlarged by a power of disposition, his will did not effect a disposition of the estate by the residuary clause unless such was his intention, even if Mrs. Brown's will gave him such power. It is not probable Mr. Brown knew that it was held in Burleigh v. Clough,52 N.H. 267, that a general residuary clause was not a good exercise of a power of appointment by will; or that it was held in Kimball v. Society,65 N.H. 139, that such a clause was an exercise of such a power when the testator so intended; or that in Emery v. Haven, 67 N.H. 503, it was held that a general residuary clause will operate as an execution of a power to dispose of property by will unless there is something to show such was not the testator's intention, probably not meaning in the latter case to provide for the determination of the weight of competent evidence by rule, or to alter the decision in Kimball v. Society, supra.

Mrs. Brown intended that the remainder of her estate should go to the society and not to Mr. Brown's heirs. If he understood that he had a power of disposition by will, it is probable that to effect the defeat of Mrs. Brown's purpose, if intended, specific language would have been used. But the husband's power of disposition under his wife's will was limited to "his support or benefit, or for the interest of the estate." The natural import of this language requires the exercise of the power during the existence of the life estate. No ground is suggested upon which it can be assumed that Mrs. Brown understood the gift of the estate by his will to Mr. Brown's relatives would be for his support or benefit, or for the, benefit of the estate.

Almost immediately after his appointment as executor, Mr. Brown surrendered the fifteen shares of stock standing in his wife's name and took out certificates in his own name. He held the certificates at his death; and the question whether he thereby acquired title to the stock depends upon the extent of the power of disposition conferred upon him by the will of his wife. The general purport of the wife's will was to place all her property under the control of her husband to do with as he deemed necessary, without control or restriction. She requested that no inventory should be made and that he should not be required to give sureties as executor. His power of disposition was not limited to his support, but was capable of exercise whenever he deemed it necessary for his benefit.

Technically, "benefit" is a much broader word than "support." Stowell v. Hastings, 59 Vt. 494; Crain v. Wright, 114 N.Y. 307; Winthrop Co. v. Clinton, 196 Pa. St. 472. But aside from these authorities, doubtless unknown to Mr. and Mrs. Brown, the word "benefit" must have had some meaning. Mr. Brown was commissioner of the county for years and probably had some idea as to what was meant by expenditure for a person's "support." That word did not convey the idea desired, and the word "benefit" was used, doubtless in the ordinary sense of profit or advantage. "Whatever promotes prosperity and personal happiness." Webster Dict. The word is not used in connection with or in addition to "support," but in contrast therewith. The expression is not for his support and benefit, but "for his support or benefit." Authority was given for a disposition of the property when necessary to do so for his support, or if thereby his prosperity and personal happiness would be promoted. Neither was the occasion for the exercise of the power placed upon reasonable necessity therefor. It was to be exercised when the husband deemed it necessary. The testatrix vested the discretion with her husband, not with the court. He could not have made the transfer merely to keep the property from the residuary legatees. Shapleigh v. Shapleigh, 69 N.H. 577. But Mr. Brown's purpose in making the transfer and the grounds upon which the action proceeded are facts upon which the parties have not agreed. The fact that the old certificates were surrendered and new ones taken out in Mr. Brown's name does not, as matter of law, establish Mr. Brown's ownership of the property. Mr. Brown did not settle an account as executor in his lifetime; but whether what he did took the property out of Mrs. Brown's estate is to be determined upon the settlement of such an account, which the executor of Mr. Brown should make. If it cannot now be shown that Mr. Brown should be credited as executor with the stocks transferred to himself, his failure to settle an account in his lifetime may deprive his estate of property which he could have shown was his.

The plaintiff is advised that the rents of the real estate and all the personal property of Mrs. Brown for which, upon the settlement of the husband's account as executor of his wife's will, he is chargeable belongs to the society. The executor of Mr. Brown has no further concern with the real estate, because the society takes title thereto under Mrs. Brown's will.

Case discharged.

All concurred.