Ladd v. Ladd , 74 N.H. 380 ( 1907 )

The codicil to the testatrix's will contained the following provision: "If I should die before making contemplated repairs upon the roofs of my buildings, then I direct my executors to have the roofs of the buildings of my farm slated, and to make such repairs on the foundations of the same as they, in consultation with the occupants of my house, may deem proper." It seems that by this provision the testatrix made the direction to her executors as to slating the roofs and repairing the foundations of her buildings dependent upon her death without having completed the contemplated repairs upon the roofs; and although she does not expressly state what she means by the words "contemplated repairs upon the roofs," it is made reasonably certain from other terms employed in the same paragraph that slating is what she had in mind, and, as incident to this, such reasonable repairs in the way of strengthening the timbers of the building as might be necessary to sustain the added weight and render slating practicable. If the testatrix had not contemplated the use of slate in repairing the roofs, it is improbable that she would have directed her executors to use slate to complete the repairs, in case she died without having completed them. It is not too much to say that what she directed her executors to use to complete the work she purposed using herself, so that the buildings, when the repairs were made, would be alike in character and appearance. It is equally certain from the terms of the codicil that what the testatrix contemplated with reference to the extent of the slating was coextensive with what she directed her executors to do — to slate the roofs of all the buildings. These conclusions are confirmed by the evidence disclosing the conduct of the testatrix from the time she made the codicil to the time of her death, and independently of and without considering her express declarations of intention. It is the general rule that declarations of intention are not admissible to explain what a testatrix meant by the terms employed in her will, and this case does not fall within any exception to that rule. But the rule does not preclude a consideration of the attending circumstances as aids in applying the will, for the purpose of ascertaining what was meant by the terms employed. Bishop v. Holt, [1900] 2 Ch. 620, 624.

In considering the question of the extent to which the executors may go in making repairs upon the foundations of the buildings, under the authority directing them to "make such repairs on the foundations of the same as they, in consultation with the occupants of my house, may deem proper," the evidence submitted, so far as it may properly be considered, does not lend any material aid. It is reasonably clear, however, that under the authority conferred by this clause they are not authorized to enlarge the capacity of the buildings by raising them a story higher, or by excavating beneath them for a cellar. State v. White, 16 R.I. 591; Stevens v. Milnor, 24 N.J. Eq. 358; Douglass v. Commonwealth, 2 Rawle 262, 264; Ardesco Oil Co. v. Richardson, 63 Pa. St. 162; Pittsburg Birmingham Ry. v. Pittsburg, 80 Pa. St. 72. If there are circumstances attending the situation of the buildings that would render it probable that the testatrix could have intended by this clause that any of the buildings should to some extent be raised, the evidence submitted does not disclose them. But in view of the fact that she instructed her executors to slate the roofs, the direction to repair the foundations is to be considered with reference to such repairs; and when this is done, it is manifest she intended that the foundation of each building should be put in such condition as to afford proper support to the superstructure resting upon it, increased in weight by the slate.

The defendant Clara M. Ladd is a daughter of the testatrix's brother, Samuel Ladd. She claims that she should have paid to her, in addition to the sum of $5,500 which she has received, the sum of $1,000, under the following provision of the will: "I give and bequeath unto the children of my brothers, Daniel and Samuel Ladd, the sum of five hundred dollars [to] each child . . . living at my death, and if either of the children of said Daniel and Samuel shall have lived with me, at any time, a longer period than one year, then such child if living at my decease shall take and receive the sum of one hundred dollars for each year he or she has so lived with me, in addition to said sum of five hundred dollars. And it is my will that my niece, Clara M. Ladd, shall in any event take and receive the full sum of one thousand dollars." At the time of making the will Clara had lived with her aunt eight years, and the plaintiff says that the construction to be given the clause is that Clara was to have $100 a year, in addition to $500, on the same terms as the other nephews and nieces, if she lived with her aunt ten years or more, but in view of the length of time (eight years) which she had then lived with her, it was the aunt's wish that Clara should have $1,000 if the aunt died without Clara having lived with her ten full years; that as Clara had, at the time of her aunt's death, lived with her for a greater period than ten years, she would take under the clause providing for $100 a year, if it were not for the provision in the codicil revoking it; and that the event never happened upon which she was to take the $1,000.

When the codicil was made in May, 1898, revoking the provision of $100 a year in favor of Clara and the other nephews and nieces, Clara had lived with her aunt seventeen years. If the aunt had then died without making the codicil, and Clara is right in her construction of this provision of the will, she would be entitled to receive under it the sums of $500, $1,700, and $1,000. But this does not seem to be the probable meaning of the provision. That portion of it beginning with the words "and it is my will," etc., cannot be read by itself as an independent clause. If it was such, and the testatrix had intended that Clara should receive $1,000 in addition to the gifts of $500 and $100 a year, it cannot be conceived why she made use of the words "shall in any event" and "full sum," when by omitting them the remaining words of the sentence would have clearly expressed her meaning. But these words are not meaningless. They were inserted for a purpose, and must be read with reference to the preceding sentence and the fact that Clara had then lived with her aunt eight years. When this is done, it is apparent that the gift of $1,000 was provisional — not absolute, and was to become absolute only in the event of the testatrix's death without Clara having lived with her ten full years.

Case discharged.

All concurred.