Summary
In Buber v. Buber, 85 N.H. 160, it was held that a bequest to the deceased was vested but not reduced to the possession of the deceased was nevertheless a property right that should be inventoried and accounted for by the administrator of his estate.
Summary of this case from Duncan v. DowOpinion
Decided May 4, 1931.
A bequest in trust to A payable upon the death of B is a vested legacy and upon A's death is a property right which though not reducible to possession during the life of B must be inventoried by A's administrator as an uncollected item of the estate. An order of the probate court may authorize the administrator to assign such uncollected item to the distributees of the estate and thereupon he may be discharged; otherwise his account will not be allowed unless he is charged with the item as an asset. Certain provisions of a will were construed as establishing a trust for the benefit of a son upon the death of the testator's widow and not immediately upon the death of the testator.
APPEAL, from a decree of the probate court, allowing the final account of the appellee, because of his failure to account for a bequest to his intestate under the third clause of the will of Luther Buber.
Luther's will provided: —
"First: I give and bequeath to my wife, Ellen Buber, my sons, Harry R. Buber, Lawrence L. Buber, Willard D. Buber, a one-fourth interest each in my business. . .
"Second: I give, devise and bequeath to my wife, Ellen Buber, the income of the balance of my estate, real, personal and mixed, of whatever nature and wherever located so long as she lives and remains my widow. In case my said wife, Ellen Buber, marries again, then my estate is to be divided as follows: To my wife, Ellen Buber, one-third, being the amount she would receive under common law had I died intestate, in which case her one-fourth interest in the business shall be divided equally among my three sons, Harry R. Buber, Lawrence L. Buber, and Willard D. Buber, and the one-third interest in my estate shall be derived from other property, without disturbing the business.
"Third: I give and bequeath to my son, Lawrence L. Buber, the sum of five thousand dollars, to be left in trust with some good trustee or savings bank, as my executor may deem best, the income to be paid to my son, Lawrence L. Buber, annually for a period of ten years, at which time one-half of the principal shall be paid to my said son; and on the balance of the twenty-five hundred dollars the income shall be paid to my said son for ten years more, at the end of which time the balance of the principal shall be paid to my said son; but should the trustee or bank having the custody of the said five thousand dollar fund be convinced that my said son, Lawrence L. Buber, was of good habits and would make a good use of the funds in their possession, they may pay the five thousand dollars in full at the end of the first ten years, or the balance at any period after that date, prior to the end of the last ten years, when in their judgment it was advisable.
"Fourth: The balance of my estate real, personal and mixed, of whatever kind and wherever located to be divided equally among my sons Harry R. Buber and Willard D. Buber, their heirs and assigns forever.
"Fifth: In case my wife, Ellen Buber, remains my widow, then her death, my son Lawrence L. Buber shall have the five thousand dollars, as above stated, under the conditions already given; the balance of my estate real, personal and mixed, of whatever kind and wherever located shall be divided equally between my sons, Harry R. Buber and Willard D. Buber, their heirs and assigns forever. . .
. . . "And it is my will that none of my real estate be sold during the lifetime of my wife, or so long as she remains my widow, other than above stated; unless the income from estate is not sufficient and it is necessary to sell some of the real estate for the support and maintenance of my wife, Ellen Buber, and that the same shall not be mortgaged unless for the same purpose, namely for the support of my wife, Ellen Buber.
"In case my wife, Ellen Buber, waives the conditions of the will and in its stead takes her one-third interest which she would be entitled to under common law had I died intestate, it is my will that the other features in my will pertaining to my three sons, Harry R. Buber, Lawrence L. Buber, and Willard D. Buber remain intact and be divided as above stated.
"In case my said wife, Ellen Buber, does not remain my widow or at her death my estate does not exceed fifteen thousand dollars then amount be paid to my son Lawrence L. Buber shall be reduced to an equal amount which my said sons would receive under common law had I died intestate."
Luther died November 17, 1916, and was survived by his widow, Ellen, and three sons, Harry, Lawrence and Willard. Ellen is living and has never remarried. Lawrence died July 1, 1927, leaving widow, the appellant, and minor children. No trustee was appointed, and no money has been paid on account of the trust legacy to Lawrence. The appellee has made no attempt to collect the bequest, principal or interest, and made no reference thereto in his final account, from the allowance of which the appeal is taken.
Transferred, without ruling, by Burque, J., upon the motion of the appellee for judgment.
Matthew J. Ryan and Crawford D. Hening (Mr. Hening orally), for the appellant.
Warren W. James, (by brief and orally), for the appellee.
The primary issue presented is the date when the gift in trust to Lawrence was made payable, — the appellant claiming it was due one year from the death of the testator, the appellee that it is payable on the death of the testator's widow. Both parties concede the question is one of intention of which Luther's will is the sole competent evidence.
The appellee points out that the first sentence of the second paragraph of the will unequivocally bestows upon Ellen, during widowhood, the income upon the balance of the testator's estate not bequeathed in the first clause; that the fifth paragraph expressly makes Lawrence's legacy payable on Ellen's death, if she remains unmarried; and that the final sentence of the will, providing for a contingent reduction in the amount of the legacy upon her remarriage or death, is inconsistent with an intention to fix an earlier date of payment.
The appellant on the other hand says the words "balance of my estate" in the second clause, which closely interpreted meant the residue after the preceding bequest of the business, may be construed to exclude the later bequest to Lawrence; that, by omitting to expressly limit the time of the payment of the trust legacy in the paragraph creating it, the testator must be held to have acted in contemplation of the rule that pecuniary legacies are payable one year from the death of the testator; that the imposition upon the executor of the duty of selecting the trustee contemplated action forthwith during the usual period of administration; that the provision in the fifth clause "at her [the widow's] death . . . Lawrence . . . shall have the five thousand dollars, as above stated, under the conditions already given" may as consistently be interpreted as speaking of the continuance of the trust as of its commencement, and is not, therefore, conclusive as to the time of its payment; that the use of the words "shall be reduced" presupposes a legacy already segregated, and that the possibility of such reduction does not preclude earlier payment under safeguarding conditions; that the intention to make the legacy payable on the death of the testator better accords with the presumptive intention to treat the sons equally; and that, upon a balance of all the probabilities, it appears that the intention was to make the legacy payable presently upon the death of the testator.
The discussions of counsel have taken a wide range, and divergent views have been expressed as to the applicability and evidentiary value to be accorded to the facts arrayed and the rules invoked. No useful purpose would be served in a seriate consideration of the merits and fallacies of the supporting arguments. It is sufficient to say that, after giving them all due consideration, it appears to us by a very strong balance of probabilities that the intention of the testator was to make the legacy payable upon the remarriage or death of the widow.
The primary purposes of the testator, drawn from the whole will, were (1) to bestow his "business" in equal shares upon his widow and three sons, or upon the sons in case of the widow's remarriage, (2) to insure the support and maintenance of his widow during her unmarried life from income on his remaining estate, with recourse to the principal thereof if necessary, and (3) to place in trust his bounty to Lawrence outside the business.
Intelligently read, in the light of these purposes, and with due consideration of the evident lack of skill in the draftsman, there is little, if any, ambiguity as respects the testator's intention. Such doubts as have been mooted appear to be due to defective paragraphing and punctuation in the second to fifth sections. No serial signification in the numbering, after the first two sections, has been suggested or is here perceived. The paragraphs and numbers were apparently designed merely as stops or punctuation.
It is clear that the testator intended the final disposition of the residue of the estate, beyond his business, should be the same whether should occur upon the remarriage or upon the death of the widow. The scrivener saw fit to treat the contingency of remarriage first, in the second to fourth sections, and to set up the contingency of death merely by reference and repetition in a separate section (See. 5). The clause fixing the time of payment as the date of Ellen's death if she remains a widow, thus given its right relation to what precedes, is decisive of the testator's intention.
In view of the conclusion reached it is unnecessary to consider the effect of the written stipulations of 1919 between the widow and three sons agreeing to the same interpretation.
The bequest to Lawrence was a vested legacy. Kennard v. Kennard, 63 N.H. 303, 310; Flanders v. Parker, 80 N.H. 566, 568; McAllister v. Elliot, 83 N.H. 225, 230. From the death of Luther, Lawrence has a cestui's interest in the bequest which upon the latter's death passed to his administrator freed from the special trust, but still subject to the limitation as to time of payment. While this interest is not reducible to possession during Ellen's life it nevertheless remains a property right which should have been inventoried by the appellee as an uncollected item of Lawrence's estate. P. L., c. 300, s. 1. If he desires to be discharged from his trust the administrator may seek authority by an order of the probate court (Id. s. 10) or by a decree of distribution (Id., c. 307, s. 6), to turn such right over to the widow and heirs of Lawrence according to their respective interests. Their recorded receipts will entitle him to be discharged of the item. Otherwise the legacy should be accounted for as an asset remaining in his hands for further administration. No disposition of the right having been made, the decree of the probate court allowing the appellee's count without charging him with this asset was error.
The question mooted in argument that, because the gift to Ellen was of the income only, a trustee under Luther's will should be pointed to protect the principal of his residuary estate is not here presented. The trusteeship imposed upon Lawrence was for his protection against his own improvidence, and the occasion for it ceased with his death. As respects the need of protection of Luther's residuary estate, the right of Lawrence's estate therein stands no differently than that of the other two sons. If facts exist which call for such protection it cannot be settled on this appeal.
Appeal sustained.
All concurred.