Adams v. Hospital , 82 N.H. 260 ( 1926 )

In this state the identity of a beneficiary under a will presents a question of fact to be determined by the court from the language employed, construed in the light of all the competent evidence. Great liberality is shown in seeking the intention of the testator in this respect. Clark v. Campbell, post, 281, and cases cited. The will here under consideration is crudely drawn and bears evidence that the language employed was used according to its most commonplace signification. When, in ordinary conversation among laymen, reference is made to a designated person and his family, the word "family" is used more often than otherwise as descriptive of his wife and children. Such has been the construction placed upon the word in the interpretation of similar provisions in jurisdictions where liberal rules of construction prevail. Gafney v. Kenison, 64 N.H. 354, 356,357; Langmaid v. Hurd, 64 N.H. 526, 527; White, Ex'r, v. White, 30 Vt. 338,343; Crosgrove v. Crosgrove, 69 Conn. 416; Hall v. Stephens, 65 Mo. 670,672; Downes v. Long, 79 Md. 382. See Eaton v. Eaton, 81 N.H. 275. That "family" was here used in neither a broader nor a narrower sense than this is evidenced by the qualifying words "if she have any." At the date of the execution of the will Nina was a single woman. It is improbable that the testatrix was contemplating the possibility of a failure of Nina's kindred. Hence the testatrix could not have used the word "family" as inclusive of "next of kin." The use of the qualifying contingent words is convincing evidence that the testatrix had in mind a family yet to be acquired. There being no evidence indicating a different intention it must be assumed that she had in contemplation the possible acquisition of a family in the ordinary course of human events, that is, by marriage; upon which the birth of children might or might not ensue. It is probable, therefore, that the word family was used by the testatrix to include the possible husband and the more remotely possible issue.

The extent of the use of the income, and of the principal so far as authorized, is expressly limited to the "support" of the beneficiaries. The grant of "full authority to use the [fund] for herself for her own support" was not intended to eliminate as beneficiaries the other possible members of her family for whose benefit, as well as for Nina's, the trust had just been declared. This was but a convenient manner of expressing, in terms of the then existing status of the beneficiaries, the fullness of the trustee's authority over the fund.

The trustee is accordingly advised in answer to the first question propounded, that it was the intention of the testatrix to create a trust for the support of Nina, and of her husband and children if any she should have during the term of the trust.

2. A bill in equity for instructions lies only in behalf of those holding fiduciary positions (Glover v. Baker, 76 N.H. 393, 396; Ross v. Church,77 N.H. 592, 593); and to them only so far as a determination of the questions presented is necessary to the administration of the trust imposed upon them. Greely v. Nashua, 62 N.H. 166, 167; Gafney v. Kenison,64 N.H. 354, 355; Cart v. St. Paul's Parish, 71 N.H. 231, 233; Bailey v. McIntire, 71 N.H. 329; Flanders v. Parker, 80 N.H. 566, 568. The right of disposition by will was a gift to Nina independently of the trust under which she, her husband and other possible beneficiaries have an interest for their support. The rights of the parties in the fund upon the termination of the trust do not concern the petitioner in her capacity as trustee. Greely v. Nashua, supra; Bailey v. McIntire, supra. If it could be held that the court has authority to advise in such a case, which has been questioned (Stevens v. Douglass, 68 N.H. 209; Harvey v. Harvey, 73 N.H. 106, 107), it has not been the practice to speculate upon the intention of a testator under mooted contingencies which may never occur. Gafney v. Kenison, supra, 357; Stevens v. Douglass, supra; Drake v. True, 72 N.H. 322, 323; Weed v. White, 81 N.H. 197. We must therefore decline to advise upon the second and third questions submitted.

Case discharged.

All concurred.