Emery v. Haven

Chase, J. It was held in Kimball v. Bible Society, 65 N. H. 139, that “a testator’s power to dispose of a remainder expectant upon his life estate is executed by his devise of property described in his will as ‘my estate,’ when it appears from competent evidence that he used those words as a description of all the property he had power to dispose of.” In the appointor’s will there was no mention of the power, nor of the property to which it related, and he had other property upon which the will operated. The ancient common-law rule on the subject (Colt v. Bishop of Litchfield and Coventry, Hob. 140, 159, 160, Denn v. Roake, 5 B. & C. 720) was not followed, although it had been recognized in Bell v. Twilight, 22 N. H. 500, 517, and adopted in Burleigh v. Clough, 52 N. H. 267. A rule of interpretation that defeats more often than it effectuates the intention of the appointor (see citations of counsel, 65 N. H. 144) is not now enforced in this state. The law looks to the competent evidence bearing upon the question for the ascertainment of intention, rather than to arbitrary rules of construction. Edgerly v. Barker, 66 N. H. 434, 447, and authorities cited. The question for consideration therefore is, What intention in respect to the execution of her power does the competent evidence show that the testatrix expressed by the residuary clause of her will ? Before considering the question, it is necessary to determine whether the testimony offered by the sons is to be taken into *505 account. If the testatrix had declared in positive and unmistakable terms, orally or in writing, that she did not intend to execute the power by the residuary clause of her first will, the declaration could not be considered in the interpretation of either will. Utley v. Titcomb, 63 N. H. 129; Hoitt v. Hoitt, 63 N. H. 475. Her expression of fear that her will would be misconstrued on this point, and her act in inducing the daughters to make the agreement of January 27, 1886, are equally incompetent. The testatrix had all the fruits of the trust property so long as she lived, and at her decease it was to descend to her heirs unless she disposed of it by will. She had as complete and absolute testamentary power over the property as she had over any property that she owned. Such use, power, and provision in respect to descent would impress one unfamiliar with the technical rules of law as amounting to practical ownership. The phrase “ all the rest, residue, and remainder of my estate and property of every description ” would be understood by such a person to include property so held. There is nothing in the language of the will tending to show that the testatrix did not intend to execute the power, except the absence of terms specifically referring to the power or to the property to which it related. The probability that she regarded the phrase “ my estate and property of every description” as descriptive of all property which she could dispose of by will, accounts for the absence of more specific terms. The fact that she owned other property upon which the will operated does not conflict with this view. She intended to dispose of all property (not disposed of by previous provisions of the will) over which she had the power of disposition, whether by reason of ownership or by reason of authority from the owner, and used language sufficiently broad to indicate such intention. Similar reasons have led the court of Massachusetts to adopt the rule that a general residuary devise will operate as an execution of a power to dispose of property by will, unless there is something to show that such was not the testator’s intention. Cumston v. Bartlett, 149 Mass. 243, and authorities cited; Hassam v. Hazen, 156 Mass. 93. The same rule has been established by statute in England and in New York. 1 Vict., c. 26, s. 27; 4 R. S. of N. Y. 2450, s. 126; Hutton v. Benkard, 92 N. Y. 295; Mott v. Ackerman, 92 N. Y. 539; New York Life, Insurance & Trust Company v. Livingston, 133 N. Y. 125. The common-law rule has been reluctantly followed in Connecticut by a divided court. Hollister v. Shaw, 16 Conn. 248. The daughters are entitled to the third of the trust fund over which the testatrix possessed the power. Case discharged. Doe, C. J., did not sit: the others concurred.