Decided June 5, 1934.
Where a testator devised all his estate to his widow for her life, making certain pecuniary bequests to others without postponement of payment thereof to the widow's death, effect should be given to the entire will by postponement of payment to that event, where present payment would render the devise to the widow a nullity. Upon a bill for direction concerning the interpretation of a will, advice will not be given as to an executor's future duties as trustee where none was named in the will nor an interpretation made of clauses of the will where neither such advice nor such interpretation is of any present utility. An executor was advised that his present duties would terminate upon the allowance of his account and the filing of a receipt by a legatee for all the personalty with which the executor should be found chargeable.
PETITION, for instructions by the executor of the will of Charles S. Keniston.
The first, second and third clauses of the will read as follows:
"first I give bequith and devise to my wife Elvira R. Keniston the whole of my Estate both real and personal to have and to hold the same during the term of her natural leife with the privelege of cutting any or all of the wood or lumber on the same if neceary for her support.
"second, And at the desease of said Elvira R. Keniston, I give bequeath and devise to my son William D. Keniston the Homestead farm on which I now reside also the Chapman land of fifty acres more or less.
"third, I give bequeath and devise to my son Charles E. Keniston the sum of three thousand dollars and also the Holden Land so called of fifty acres more or less."
The fourth, fifth and sixth clauses are worded as present bequests like clause three above. Clause five contains a gift in trust for life with a remainder, no trustee being named. Clause six is a residuary clause.
The executor inquires regarding the time of payment of the legacies mentioned in paragraphs three, four and five, the extent of the interest of the widow, and for an interpretation of paragraph five.
Transferred without ruling by Young, J.
Jewett Jewett, for the executor, furnished no brief.
Under the first clause of the will the widow takes a life estate in all of the testator's property, with the power of disposal of the wood or lumber contingent upon her requiring it for her necessary support. She has an immediate, absolute and unconditional right to the use and income of the property as a life tenant, subject, of course, to the payment of debts and expenses of administration. Clough v. Clough, 71 N.H. 412, 415.
The devise contained in the second paragraph of the will is, obviously, not to be paid until the death of the life tenant.
In the third, fourth, fifth and sixth clauses the testator did not, in terms, postpone the payment of the legacies therein mentioned until the death of the life tenant. Nevertheless, in order to give the whole will effect and to carry out the intention of the testator as gathered from the whole instrument, the payment of those legacies is also to be postponed until the death of the life tenant. Although the testator did not use the word "remainder" or words of similar import, it is obvious that he must have intended to defer the payment of all legacies except the first until after the death of the life tenant. Clough v. Clough, supra. To require the present payment of these legacies is to render the widow's legacy a nullity. Such cannot have been the testator's intention. To regard these legacies as gifts in remainder is to avoid conflict in the provisions of the will and to give effect to all the provisions of the will. This must have been the testator's intention.
The executor is advised that his present duties terminate upon the allowance of his account and the filing of the widow's receipt for all the testator's personal property with which he is found chargeable. His future duties and the interpretation of clause five do not now require determination, and so will not be touched upon at this time. Madden's Petition, 86 N.H. 583.