Kimball v. Bible Society , 65 N.H. 139 ( 1889 )

By his will Mr. Richardson gave his wife all his "personal and real estate during her natural life, to be used and managed by her as she shall see fit." Out of "whatever may remain of my property after her decease," he gave two legacies "Of the balance" he gave one half to the New Hampshire Bible Society, and left "the other half to be disposed of by my beloved wife as she shall choose." The question is, whether her power to dispose of "the other half" was executed in her will made nine years after his death. After certain bequests, she gives to the trustees of Phillips academy, of Andover, Massachusetts, for the use of the theological seminary under their care, "all the rest, residue, and remainder of all my estate." Does the competent evidence show that she understood "all my estate" included all that her husband left "to be disposed of by my beloved wife as she shall choose"? Did she mean to exercise all her disposing power? There is no occasion to inquire whether her will contains an express or distinct reference to a remainder expectant upon the termination of a life estate, or to a power of appointment, or whether she had in mind, and intended to exercise, a power technically distinguished from the right of an absolute proprietor to dispose of his property by will. Such an inquiry cannot be substituted for the question whether her will is an expression of a purpose to exercise all the right she had of determining who should be proprietors after her decease.

All, or nearly all, the property in which she had any interest during the sixteen years of her widowhood was the estate and the proceeds of the estate left by her husband. During that time, being tenant for life of the whole, and sole executrix, she used and managed the whole as if it were hers. It does not appear that she was so familiar with legal views of her husband's will as to understand the difference between a fee, and her rights of holding, using, and managing property as she saw fit during her life and deciding who should have it afterwards. A legal presumption so contrary to the fact as that which, for some purposes, imputes to everybody full knowledge of the law, has no tendency to show that as a matter of fact the testatrix used the words "my estate" in a strict sense, intending to exclude the property over which she had a testator's power, and in which her rights of use were more than those of an ordinary tenant for life. That property was hers for all the purposes for which she seems to have wanted it. It was hers to such an extent and in such a practical sense that she would be likely to regard it as hers and to call it hers. Naturally, and in accordance with the common use of language, she would speak and write of lands and goods as hers which were hers during her natural life, to be used and managed as she saw fit, and the inheritance of which was subject to her unlimited control Even if she had ever maintained or recognized a distinction between those possessions that would go from her to her heirs without a will, and those that were hers for enjoyment and disposal, it would not necessarily follow that by "all my estate" she meant only one of those classes of property. There is reason to believe, and no reason to doubt, that she exercised her testamentary powers regardless of that distinction; that her knowledge of it (if she had any) was slight and indistinct; that she did not say "all my estate" with a purpose of waiving a large part of her disposing right; and that she used those words in no narrow or technical, but in their comprehensive and popular, sense.

"An estate for life with an unqualified power of appointing the inheritance comprehends everything. . . . How can the court say that it is only by will that she can appoint? By her interest she can convey her life estate. By this unlimited power she can appoint the inheritance. The whole equitable fee is thus subject to her present disposition." Barford v. Street, 16 Ves. 135, 139; Johnson v. Cushing, 15 N.H. 298. It is probable that Mrs. Richardson labored under some misapprehension as to the extent of her title and the legal character of her appointing power over what was not strictly and absolutely hers, and that the scrivener did not take time to inform himself on these subjects. The inference from the will is, that she did not understand it to be necessary or useful to distinguish between an estate of remainder and an unlimited power over such an estate, or between property that would go to her heirs if she did not otherwise direct, and property that would go to them on her order.

If the will were construed upon a presumption that she was learned in the law, there would be a difficulty in inferring that she was ignorant of her legal position, or was satisfied with her bequest of "all my estate" as an expression of a resolution to abstain from the exercise of a large part of her testamentary power. Her proprietary interest, her actual and rightful possession, use, and management, and her right of appointing legatees are competent evidence of the sense in which she used the words "my estate" in the residuary clause. Upon this, and all the competent evidence in the case, and the evidence offered by her husband's heirs, it is more probable than otherwise that she intended to exercise her entire testamentary authority, of whatever legal nature or natures it might be. And her intention is not defeated by the rule of construction, the general operation of which was regarded in Burleigh v. Clough, 52 N.H. 267, 281, with extreme dissatisfaction. Her intention, proved by competent evidence, is her will. Amory v. Meredith, 7 Allen 397, 398; Rice v. Society,56 N.H. 191, 197-203; Sanborn v. Sanborn, 62 N.H. 631, 643; Kennard v. Kennard, 63 N.H. 303, 310. Her bequest to the seminary was an exercise of the disposing power given by her husband as well as that derived from the statute.

In her management of the whole property as one estate, the principal and income were mingled by investment without any observance of the difference between a life estate and a remainder. Daniels, her administrator, and Kimball, the administrator of her husband. join in asking what property each shall administer. Under the circumstances, this seems to be a question of convenience. Notes payable to Mr. Richardson, and now held by his administrator, may be conveniently collected by the holder. No reason appears why Daniels should not take and account for personal property standing in the name of Mrs. Richardson, and pay Kimball what he needs for the expenses of his administration, and for the legacies given by Mr. Richardson to Dudley, Marden, and the Bible Society. The administrators will, of course, act in concert, with full knowledge and approval of each other's proceedings, and upon consultation with the parties in interest.

CLARK, J., did not sit: the others concurred.

After the announcement of the foregoing decision, the question was presented whether the income of Mr. Richardson's estate, accruing after his death and not expended by his widow, passed by her will as her property, or whether it is a part of the estate described in his will as "whatever may remain of my property after her decease."