Decided October 7, 1947.
A bequest in trust to pay the net income to the testator's daughter quarterly or at other times in the trustees' discretion, and upon her decease to pay the principal to her surviving children, created an equitable life estate only in the daughter. Upon the decease of the daughter without children, a contingency not specifically provided for by the will, the remainder interest passes under a general residuary clause, and the personal representative of the daughter's estate is entitled to the share thereof bequeathed to her as residuary legatee.
PETITION for instructions brought by the trustees under the will of Noah S. Clark, who died on April 15, 1910. The clause to be construed, paragraph 18 of the will, devised certain stocks in trust, with instructions to the trustees to pay over the net income quarterly, or at such times as in their discretion seemed best, in equal shares, to the testator's children, by name, one of whom was Helen C. Phillips. Upon the decease of each child, one-third of the trust fund was to go to the children of the deceased child living at the time of the death of the latter. This clause further provided that upon each division of the fund, the issue, if any living of any of his deceased grandchildren, should take the share of the parent. Helen C. Phillips died testate on August 25, 1946, leaving no children or other lineal descendants. Edward W. Clark, another of the children, died July 21, 1920, and one-third of the trust fund was paid to his surviving children. The third child, Clara C. Matthews is still living. There was no provision in the will as to the disposition of the share of any of the three children mentioned in the 18th clause if they died without issue, and the question before this court is as to the distribution of $4,223.94, being the one-third part of the original trust fund held for the benefit of Helen C. Phillips.
The residuary clause of the will, after providing for the testator's wife, instructed the trustees upon her death to pay one-eighth each to five different beneficiaries, namely his children, Helen C. Phillips, Edward W. Clark and Clara C. Matthews, one-eighth to George M. Clark and Charles C. Clark, nephews, and the net income of one-eighth to each of the grandchildren, Edith M. Clark, Irene Matthews and Elmer C. Matthews, until the youngest should become thirty-eight. The clause further provided with reference to the grandchildren that the income payable to the parent should be paid to the children in equal shares, should any of the grandchildren die leaving issue, until the youngest of the survivors of the grandchildren should reach the age of thirty-eight years, at which time the three-eighths devised to the grandchildren should be divided equally among the survivors of the three and the heirs of any of the three deceased, the heirs to take only the share of the deceased. It appears that Edward W. Clark, Helen C. Phillips, George M. Clark, Charles C. Clark and Irene Matthews, who became Irene M. Tripp, are deceased. Edith M. Clark, now known as Edith C. Hill, and Elmer C. Matthews, youngest of the surviving grandchildren, are both living and were over thirty-eight years old at the time of the death of Irene M. Tripp.
Edward W. Clark is survived by his daughter, Edith C. Hill, who is his only lineal descendant except her children. Clara C. Matthews survives and has a son and also a granddaughter, Barbara T. Borden, daughter of Irene Matthews Tripp, deceased. George M. Clark, deceased, has four sons now surviving, and Charles C. Clark, deceased, who predeceased the testator, was survived by two children, Hazel M. Clark, who later became Hazel M. Annis, and Leola M. Clark, who later became Leola M. Grant, and who is now living. John H. Annis, husband of Hazel M. Annis, is executor of her will.
Upon the death of the widow of the testator the remainder of his estate was distributed in accordance with the residuary clause of the will. Transferred without ruling by Wheeler, J.
George I. Hazelton, for the plaintiffs, furnished no brief.
Edwin R. Sparrow and James A. Bailey of Massachusetts (by brief) for the defendant executors of the will of Helen C. Phillips, Elmer C. Matthews and Barbara T. Borden.
The remaining defendants entered no appearance.
The share of Helen C. Phillips, devised to her under the clause of the will to be construed, became part of the residue and should be disposed of under the provisions of the residuary clause. The law is too well settled in this jurisdiction to require extended citation, that the testator's intent is the sovereign guide in the interpretation of a will, and this intent being ascertained, the court must enforce it unless it is illegal or impossible to do so. Osgood v. Vivada, ante, 222; Peaslee v. Rounds, 77 N.H. 544, 545, and cases cited.
In the case before us the testator by the 18th clause of his will gave his daughter, Helen, an equitable life estate only, and even invested the trustees with discretion as to the times of payment. The remainder over was to go to her children. Had he desired her to have different estate it seems probable he would have said so. The will is carefully drawn and shows in numerous instances, as in clauses 19, 20, 21 and 25 that he was aware of the possibility of a failure of issue and knew how to provide for such a contingency when he so desired.
In West v. Chase, 92 N.H. 104, a will devised a legal life estate with no specific disposal of the remainder. The life tenant there was also one of the residuary legatees as is the case here. The court stated in its opinion that in such cases the law was well established, that the remainder passed under a general residuary clause. There seems to be no reason for any distinction between legal and equitable estates in such situations, nor do the authorities appear to make any. 69 C. J. 422, notes 56-58. See also, Vandewalker v. Rollins, 63 N.H. 460.
The fact that the testator gave his daughter, Helen, only an equitable estate for life and invested the trustees with discretion would strengthen the conclusion that he intended no fee to her under this clause of the will. In the recent case of Belford v. Olson, ante, 278, it was held that a legal life estate to the testator's wife with complete power of disposition, and the unexpended remainder to certain other beneficiaries, creates only a life estate in the wife and not a fee. The argument in that case in favor of a fee appears to be stronger than in the one before us and it is our conclusion that the daughter, Helen, took no fee.
It has already been decided by this court in construing the will of Noah S. Clark that the interest of the legatees including the daughter, Helen, in the one-eighth part of the residuum under the 25th clause of the will vested at the death of Noah. Flanders v. Parker, 80 N.H. 566.
Therefore the executors of the will of the daughter, Helen, are entitled to one-eighth of $4,223.94, which she took under this clause. The grandchildren, Edith C. Hill, Irene M. Tripp and Elmer C. Matthews took a vested interest in three-eighths of the residue under clause 25, there being no uncertainty as to their right of enjoyment, their right of possession only being deferred until the death of the widow, and thereafter until the youngest or the survivor reached the age of thirty-eight. Kennard v. Kennard, 63 N.H. 303; Vandewalker v. Rollins, supra; Flanders v. Parker, supra; Upton v. White, 92 N.H. 221, and cases cited.
In addition to these grandchildren a vested remainder was also taken under the same clause by Edward W. Clark, son; Clara C. Matthews, daughter, and George M. Clark, nephew. Charles C. Clark, also a nephew, predeceased the testator and apparently his share lapsed and would descend to his heirs in the descending line at the time of his death, these heirs being Hazel M. Annis and Leola M. Grant. R. L., c. 350, s. 12; Flanders v. Parker, supra.
Therefore the trustees are instructed that they should make distribution as follows: one-eighth to the executors of Helen C. Phillips; one-eighth to Edith C. Hill; one-eighth to the personal representative of her father Edward W. Clark; one-eighth to the grandchild, Elmer C. Matthews; one-eighth to the executor of the will of the grandchild, Irene M. Tripp; one-eighth to Clara C. Matthews; one-eighth to the personal representative of George M. Clark, deceased; one-eighth to be divided equally between Leola M. Grant, daughter of Charles C. Clark and John H. Annis, executor of the will of Hazel M. Annis.