Brown v. Eastman , 72 N.H. 356 ( 1903 )

"I hereby give, bequeath, and devise all the rest and residue of my estate, both real and personal, wherever found and however situated, to my beloved wife, Carolin E. Clay, she to have the use and control of the same and the right to use as much of the same as she may please for her comfort, happiness, or pleasure, either at home or abroad; and if there is anything left at her decease, it is my request that she give the said Congregational church a parsonage, and one half of the residue to my heirs."

We are asked to determine whether, by the foregoing provision in the will of Ithiel E. Clay, Carolin E. Clay took such an estate in the property described that she could, by will, after giving the Congregational church at Chatham Center a parsonage, and one half of the residue to the heirs of Ithiel, bequeath and devise the remainder to her own heirs. Looking at the provision in a natural way, regardless of legal terms and technical rules, the conclusion is irresistible that it was the testator's intention to give to his wife Carolin, not only the unqualified use and enjoyment of the property during her life, but the right to dispose of the same by will at her decease, subject only to the testator's request that she should give a parsonage to the Congregational church at Chatham Center and one half of the residue to the testator's heirs.

The legal effect of the words, "I hereby give, bequeath, and devise all the rest and residue of my estate, both real and personal, wherever found and however situated, to my beloved wife, Carolin E. Clay," without other words, would unquestionably be to give Carolin an estate in fee. Nowhere in the entire provision are there any words expressly limiting the estate bequeathed and devised to Carolin to an estate for life, or providing for remainder over. True, the words above quoted are followed by the words, "she to have the use and control of the same and the right to use as much of the same as she may please for her comfort, happiness, or pleasure, either at home or abroad." It is urged that from these words it should be inferred that the testator intended an estate for life. But the final words of the provision, "and if there is anything left at her decease, it is my request that she, give the said Congregational church a parsonage, and one half the residue to my heirs," leave no room for this inference. On the contrary, they show very clearly that the testator understood that he had given the whole estate to Carolin. If he had understood that he had given Carolin a life estate only, it is not probable that he would have been found requesting her to dispose of the remainder in a particular way. If such had been his understanding, it is probable that he would have disposed of the remainder himself, directly and in his own right, and not through Carolin by way of request. The fact that he adopted the latter course shows clearly enough that he understood that he had given Carolin the entire estate.

The contention that by the words immediately under consideration the testator intended to add to a life estate power to the life tenant to will to the Congregational church at Chatham Center a parsonage and one half of the residue to his heirs, and to die intestate as to the balance, is contrary to legal presumption (P. S., c. 186, s. 6; 29 Am. Eng. Enc. Law 354, and cases there cited; Jenkins v. Fowler, 63 N.H. 244, 246) and to all the probabilities. In the first place, the words are inconsistent with the idea of a power. To "request" is not to empower, but to recognize that power to do the thing requested already resides of right in the one of whom the request is made. In the next place, there is no reasonableness in the idea that the testator, understanding that he had given Carolin only a life estate and that the remainder was undisposed of, requested her to will one half of the remainder to his heirs, and died intestate as to the balance. If the testator had so understood, and it had been his intention that his heirs should have the entire remainder to the exclusion of the heirs of Carolin, it is probable that he would have given the whole remainder to them directly, in express terms, or requested his wife to will them the whole, or died intestate as to the whole. If, on the contrary, with such understanding, it was his intention that his heirs should have only half of the remainder, it is improbable that he would have requested his wife to will them one half and died intestate as to the balance, knowing that the effect of such intestacy would be to give them the remaining half.

The only reasonable conclusion is that the testator understood that he had given his wife the fee, and so understanding, requested her to will one half of what remained at her decease to his heirs, intending and expecting that she would, by right of her absolute estate, dispose of the other half to her own heirs or otherwise, as she saw fit. In reaching this conclusion we have relied upon the particular provision under consideration. It may be said, however, that a careful study of the will as a whole, in. the light of the circumstances under which it was executed, confirms the conclusion reached.

Case discharged.

All concurred.