Gafney v. Kenison

10 A. 706, 64 N.H. 354

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1887
• Status: Published

Opinion

Blodgett, J.

1. The devise of the William Thurston farm includes the meadow-land. It was generally known as a part of the farm when the will was executed, and the fail presumption is that the testator so regarded it. Moreover, if there is any doubt on this point, the donees are entitled to the benefit of it. Parsons v. Winslow, 6 Mass. 173.

2. The question in whom the title of the farm will vest upon the decease of Josiah W. obviously does not concern the executor, and therefore is not properly before the court, and cannot be considered. Hodgdon v. Darling, 61 N. H. 582. The object of a bill of this kind is to instruct the trustee in his duties for his protection. Greeley v. Nashua, 62 N. H. —.

3. The executor has authority to complete the burial-lot. Bell v. Briggs, 63 N. H. 592.

By “an ample sum of money,” the testator meant a sum large enough so that the income of it would forever be sufficient to keep his lot in repair, and enlarge it if necessary. The language used is sufficient for these purposes, and the sum of money to be invested is reasonably capable of ascertainment. The amount to be invested may be determined at the trial term. Limiting the answer to the question of the sufficiency of the language to warrant the investment, as we do, it is unnecessary to go further.

4. Section 18 of the will empowers the executor to sell so much of the testator’s real estate at public or private sale, without license from the probate court, as he may deem advantageous and for the best interests of the estate, for the purpose of paying any or all the legacies given in preceding sections. This is what the section says in plain words, and there is no ground for any other construction.

The words “ as above provided,” in section 19, refer to the authority conferred by section 18, and mean that the executor may sell without license from the probate court, and at public or private sale.

5. The provision that the proceeds of the sales made under the preceding part of section 19 shall be safely invested and the income thereof be applied by the executor for the relief of the most destitute of the testator’s relatives, etc., may be considered as creating a charitable trust, to be administered by the executor according to his discretion, imder the supervision of the court. 2 Perry Trusts (3d ed ) s. 699, and authorities cited. Anciently such a trust would have been held void for uncertainty ; indeed, Webb's Case, 1 Rolle 609, is directly in point, it having there been held that if a man devise to twenty of the poorest of his kindred, this is void for the uncertainty who may be adjudged the poorest. But at the present day the mere uncertainty of the persons, until they are ascertained, is no ground for avoiding the will. 1 Redf. Wills (2d ed.) *685, *686. Modern decisions to the contrary may be found (see 1 Jar. Wills, 5th Am. ed., note); but an examination of the authorities generally will show that in modern times instances of testamentary gifts being rendered void for uncertainty have been of much less frequent occurrence than formerly, and that courts are now quite uniformly reluctant to admit uncertainty as a ground for avoiding the formal disposition of property.

The trust thus created by the testator is confined and limited by the language itself to such of his relatives as are not more remote than nephews and nieces and their families. By “ the most destitute of my relatives ” the testator meant those comparatively most destitute; and by “ tbeir families ” he intended his brothers and sisters, their wives and husbands, and his nephews and nieces, their wives, husbands, and children. Who are relatively the most destitute legatees, to what extent they are severally to be relieved, and whether the relief is to be furnished in money or otherwise, must be determined by the executor, subject to the control of the court. More specific answers or more definite instructions cannot now be given; but if in the execution of the trust additional instructions become necessary in the opinion of the executor, or if any of the relatives embraced in the trust deem themselves aggrieved in the manner of its administration, application may be made to the court at any time, and further instructions will be given.

6. Inasmuch as the proceeds of the sales under section 19 are not to be divided until the expiration of the term of ten years, there is no occasion at this time to consider the numerous questions propounded by the executor as to the division of such proceeds, and his duties in connection therewith; and we decline to consider them. See Hodgdon v. Darling, supra. It is within the province of courts to decide upon the rights of parties as they exist in the present, but it is not within their province, nor will they assume jurisdiction, to decide in advance what such rights may be in the future.

7. Ileal estate may be set off to the legatees as provided in the last clause of the codicil. The “ three experienced and disinterested persons ” therein referred to may be agreed upon by the parties in interest, or if they fail to agree the appointment will be made by the court upon due application.

Case discharged.

Smith, J., did not sit: the others concurred.