Bartlett v. Bartlett

25 N.H. 278

• Court: Superior Court of New Hampshire
• Decided: December 15, 1852
• Status: Published

Opinion

Eastman, J.

What construction shall be given to the will of William Bartlett ? is the only question raised by this case.

The will provides that the wife of the testator shall have her support during her life, from the avails of his farm; which farm the testator gave to his son, Elijah.

It also provides that if the testator’s wife should at any time choose to live with either of her daughters, she should have the privilege of so doing, and Elijah, who had the farm, was required to support her at her daughter’s. •

At the time of the testator’s decease, he left three daughters ; two who were married and resided in Newfane-, Vt., and one, unmarried, residing in Westborough, Mass.' One of the daughters has since removed to Worcester, Mass., where the expenses of living are much greater than at her previous residence, and her mother, having gone to reside with her, claims of her son the cost of her support at Worcester.

The defendant being liable by his bond to support the plaintiff according to the provisions of the will, the question is, was it the intention of the testator that Elijah should support his mother at any place where his daughters might chance or choose to reside, whatever might be the expense, or did he intend simply that she should be supported at such rates as would be required at Winchester, Newfane, or Westborough, where be and his daughters then resided?

In regard to this question, we all think that there can be but very little, if any, doubt. Neither do we think that there is anything in the express terms of the will which conflicts with what we regard as the intention.

In giving a construction to a will, the intention of the testator is the first thing to be considered. But in ascertaining what the intention is, we properly enough look at the circumstances that surrounded him when he made the will.

The testator, in this ease,was a farmer, and Ms daughters were residing in places where the expenses of living were not great; aiid it can hardly be supposed that, when he made his will, he contemplated any important change of residence, or material increase in their expenditures in living. If the principle contended for by the plaintiff he correct, then the son would be obliged to support the mother wherever the daughter might reside, and however great might be the expense. If the daughter should reside in Boston, or New York, or New Orleans, still he would be compelled to render the support, and the farm itself might soon be required for her support.

Now we think that the testator could not have intended that his will should receive any such construction, but that his meaning and intention must have been, that his widow should be supported at his daughter’s, where they then resided, or at some similar place, where the expenses would not be materially increased.

The action, then, cannot be maintained for the cost of her support at Worcester; but for such sum as it would cost to support her at Westborough and Newfane, and other similar places.

According to the provisions of the ease, the plaintiff must have execution for such sum only as it would cost to support her at Winchester, and other farming towns,