Claggett v. Hardy

3 N.H. 147

Opinion

Richardson, C. J.

delivered the opinion of the court.

Footnotes

•

*

The first question to be decided in this case is, what was the intention of the testator in relation to the legacy of $275 16, given to his daughter Clarissa Pierce. We have attentively examined the will, and are of opinion, that the intent was, that Clarissa should have the interest only of the $275 16 during her life, and that after her decease the principal sum should be divided among her children. The reasons, upon which we ground this opinion, we shall now endeavor to explain.

We think, that the proviso at the close of the Will was intended to apply as well to this particular legacy, as to the residue of the estate, that might remain to be equally divided ; because the phrase, “ that part which is intended for said “ Clarissa,” may be, as well at least, understood to mean, that part of the estate, as that part of the residue ; and because this legacy is given expressly to make her share equal to what had been given to other children of the testator ; and this purpose will not be accomplished, unless this sum is to go to &er children ; for, by the terms of the gift, she is to have only the use of the money during her life.

We think also, that it was the intent of the testator, that this sum should be reserved for the use of Clarissa and her children,.and that the husband of Clarissa should have no control of it. No motive for giving this legacy in the manner it is given can be conjectured, unless such were the objects. It is not said in express terms, that the legacy is given for the separate use of Clarissa ; but this is strongly implied in the manner of the gift. The use only is given, and that only for life. The money after her death, is to be divided among her children. This clearly shews, that the husband of Clarissa was not the object of tlie testator’s bounty.

Relieving then, as we do, that it was the intent of the testator, that Clarissa should have the use of the money during her life, and that at her decease it should be divided among her children, it seems to us, that although the money is in terms directed to be paid to her ; yet such could not hav® been thé intention of the testator. Because, if the money were paid to her, it would at once become subject to the con •> trol of the husband, might be scattered by him to the winds, and thus be of no use to her during her life, nor to her children after her decease. This would be most manifestly contrary to the intention of the testator. It is apparent, that the person, who wrote the will, was not well acquainted with the business he undertook to perform, and that no reliance is to be placed on any particular form of expression, he may have seen fit to adopt. The whole will must be taken together, and such, construction be put upon it, as will carry into effect the purposes the testator had in view. We must be guided not by the letter, but by the spirit of the instrument. And this will, thus interpreted, seems to us to give to Clarissa the right to receive only the interest of this legacy. This construction is essentially necessary to preserve the interest of Clarissa and her children ; and we cannot doubt, that it is in strict accordance with the real intention of the testator.

Such being, in our opinion, the intent of the testator, the next question is, can it be carried into effect ? It is objected, that no trustee is named in the will to receive and manage the money; and that therefore it must from necessity be paid over to the wife. It is true, that no trustee is expressly named in the will. But what the testator liad not the skill or the foresight to provide, the law has,in this instance, kindly provided. The executor is the trustee. On this point, the case of Saunderson vs. Stearns, (6 Mass. Rep. 37,) is a direct authority. And we are of opinion, that the executor in this case has a right to retain this legacy, during the life of Clarissa, or until he shall be removed and another appointed, under the statutes of 1820, cap. 21 & 45.

The plaintiff is, therefore, not entitled to have execution for the said sum of $275 16, nor of any part of it. But if the interest has not been paid, the plaintiff is entitled to have execution for that.

Harris, J. having been of counsel, did nat sit.