Langley v. Farmington

Chase, J. It is unnecessary to determine whether the widow, under the residuary clause, took an absolute estate as claimed by the defendants, or an estate for life enlarged by the addition of a right or power to use and dispose of the principal as she saw fit. Burleigh v. Clough, 52 N. H. 267; Kimball v. Bible Society, 65 N. H. 139, 151. If her interest was only an enlarged life estate (which is the smallest that can be claimed in her behalf), the testator intended that her possession of the property should immediately succeed' his and be of the property in specie,, and that she should have the control, use, and disposal of it during her life. The facts, that his bequest of the residue toller is accompanied by a habendum clause which provided that she was to have and to hold it to her use and behoof forever; that he gave it to her without the intervention of a trustee, and without imposing on her an obligation to give a bond to protect those in remainder, if any; that he made her residuary legatee and executrix, so that a bond to pay debts and legacies might be-accepted from her instead of one to return an inventory (G. L., c. 195, ss. 12, 13, Emery v. Judge of Probate, 7 N. H. 142) ; that she was to be amply supported and maintained out of the estate, and was to use and dispose of it as she saw fit; and that the bequest. *433 over is of the remainder of said estate, “if any” (Harris v. Knapp, 21 Pick. 412), all disclose an intention to give her the possession, and a right to use and manage the property with a large share of the freedom and independence which he had enjoyed. While the ordinary rule is, that if a testator makes a general bequest of all his property, or the residue, to one for life with remainder over, and the property consists in part of perishable personal property, the perishable property should be converted by the executor into permanent securities and the income only be paid to the life tenant, the rule is not applied in a ease like this, where the testator intended the life tenant should enjoy the property in specie. Healey v. Toppan, 45 N. H. 243, 260, and authorities cited, particularly Morgan v. Morgan, 14 Beav. 72 — S. C., 7 Eng. L. & Eq. 216. In such case the life tenant is entitled to-the possession without giving a bond to the remainderman, the-same as he would be if the property were specifically bequeathed to him. Healey v. Toppan, supra; Weeks v. Weeks, 5 N. H. 326; Marston v. Carter, 12 N. H. 159, 163; French v. Hatch, 28 N. H. 331, 352; Weeks v. Jewett, 45 N. H. 540, 543; Burleigh v. Clough, supra; McCarty v. Cosgrove, 101 Mass. 124. Whether Mrs. Langley was absolute owner .or only life tenant of the residue, she was entitled to receive possession of the property in specie from the testator’s representative without giving a bond to any one to account for it. Although she did not qualify as executrix, she appears to have fully administered llie estate in accordance with the provisions of the will. She took possession of the property, and paid, the debts and general legacies. If she had given a bond as executrix, that would not have caused a different disposition of the property, nor secured the performance of additional duties in respect to it, except the filing of an inventory and the settlement of an account. The bond would not have protected the remaindermen against the unauthorized, negligent, or fraudulent use or disposal of the property while in her possession as life tenant, for tlie executrix would not be responsible to tbe remaindermen for the preservation of the property after it passed into the possession of the life tenant. Lynde v. Estabrook, 7 Allen 68, 72; Weeks v. Jewett, supra. If the testator’s brothers had an interest in the residue as remaindermen, their interest could be protected whether the executrix’s official duty to file a bond and inventory was performed or not. They could compel her, by a suit in equity, to file an inventory of tbe property in which they were interested, and tlms insure their protection against her misuse or misappropriation of it. 2 Kent Com. 354; Weslcott v. Cady, 5 Johns. Ch. 334; Langworthy v. Chadwick, 13 Conn. 42; Homer v. Shelton, 2 Met. 194; Healey v. Toppan, supra. The testator’s estate having been settled, and his property having gone to those who were entitled to it, and would have received *434 it if all the requirements of the law had. been complied with, the settlement cannot be disturbed. Hibbard v. Kent, 15 N. H. 516; Clarke v. Clay, 31 N. H. 393 ; George v. Johnson, 45 N. H. 456; Mercer v. Pike, 58 N. H. 286. The plaintiff is administrator of the estate only in name. No trust now remains for him to execute. The payment of the notes in suit by the defendants to Mrs. Langley was, under the circumstances of the case, payment as against all parties beneficially interested in the estate, and therefore as against the plaintiff. Clark v. Clark, 62 N. H. 267, 272. The proceeds of the .notes-, together with the other property of the testator, went into the possession of Mrs. Langley, where they belonged; and if she has not expended the whole of them, as she was authorized to do by the will, and the testator’s brothers have any interest in the remainder, their remedy is against her representatives directly,' and not against the defendants indirectly through the plaintiff. Exceptions overruled. Carpenter, J., did not sit: the others concurred.