Northwestern Trust Co.

Birdzell, J. This is an appeal from a judgment of the district court of Grand Forks county, affirming an order of the county court, which overruled certain objections to a final account, and approved the report of the executor. Richard H. Murphy died testate November 6, 1913. His will, which was duly probated, is as follows: “I, Richard H. Murphy, being of sound and disposing mind and memory, but conscious of the uncertainty of life, do hereby make, publish and declare this my last Will and Testament hereby revoking all former wills at any time made by me. “First, I direct the payment of the expenses of my last sickness and funeral, and any just debts that I may leave owing. “Second, I give, devise and bequeath to my wife Annie R. Murphy one-third of my estate, both real and personal. “Third, I direct my executor hereinafter named to erect a monument on my grave at a cost approximating ten thousand dollars ($10,-000.00). “Fourth, I give, devise and bequeath to my brother James Murphy residing near Waseca, Wisconsin, and to my brother John Murphy, residing near Waseca, Wisconsin, each the sum of five thousand dollars ($5,000.00); and to my sister, Margaret Mehan, Manitowac County, Wisconsin, to my crippled nephew whose name I think is Richard, son of my sister Margaret Mehan, residing with his mother, and to my niece Hannah Murphy, daughter of my brother James Murphy, each the sum of ten thousand dollars ($10,000). “Fifth, the rest and residue of my estate I give, devise and bequeath to the Northwestern Trust Company of Grand Forks, North Dakota, as trustee, however, in trust, for the equal use and benefit of my nephews and nieces other'than my nephew Richard and my niece Hannah hereinbefore provided for, to hold, manage, invest and reinvest the same and to pay over the income arising therefrom in equal shares to my said nephews and nieces until they shall respectively reach the age of twenty-five years, at which time a pro rata share of the principal of said trust estate as then invested shall be paid and transferred to the person reaching such age. — 1272 — “Sixth, I hereby make, nominate and appoint the Northwestern Trust Company, of Grand Forks, North Dakota,. executor of this will and trustee of the trusts herein created, hereby giving to said Northwestern Trust Company, in whichever capacity it may be acting, power to sell, transfer, convey and assign any and all real estate when in its judgment it shall be for the best interests of the parties interested in this will, and to invest and reinvest the trust estate hereinbefore devised and bequeathed to it. Provided, however, that the stock in the Farmers’ National Bank of La Moure, North Dakota, held by me at the time of my death, shall be held intact for a period of ten years and not sold in whole or in part during such period.” The will was admitted to probate in January, 1914, and soon thereafter an inventory of the estate was filed, in which the real property was appraised at $15,000 and the personalty at $135,276.88; total, $150,-276.88. A final report and account was duly presented for approval covering the receipts and disbursements of the executor from January 3, 1914, to May 12, 1919, and in November, 1919, an amended final account was presented making some slight changes in the original account, which were made necessary by a subsequent transaction. The amended report shows receipts aggregating $180,082.11 and disbursements as follows: Administration expenses, $10,302.85; taxes and insurance, $834.04; expenses of last sickness and funeral, $1,646; widow’s allowance, $5,250; debts and claims, $13,768.51; total, $31,801.40. Partial distribution to Annie B. Murphy, $46,800; payment in full to all legatees whose legacies are provided for in definite amounts, $40,000; expenditure for monument (directed by will,) $9,473.43; partial distribution to residuary legatees, $40,000; leaving a balance of cash on hand, $11,932.20. The county court arrived at the amount of the legacy of Annie B. Murphy by subtracting from the total receipts the total of the debts, taxes and insurance, expenses of last sickness, widow’s allowance, and expenses of administration, and dividing the remainder by three. The amount of c'.istributable estate by this calculation was $148,280.71, and the legacy of the widow, $49,426.90. Objections and exceptions to the final account and petition for distribution were filed by the widow, in which it was claimed that the basis for computing her share was the total estate, as. shown by the final áccount, less the expenses of last illness, and funeral, and the total debts and claims (minus a bank stock assessment of $750, which it is claimed was not properly allowed as a debt), or $164,917.60, and specific objection was made to reducing this basis by the further sub — 1273 — traction of expenses of administration, taxes and insurance, the widow’s allowance, amounting in all to $17,060.39. It is further objected that the account does not include interest on the widow’s legacy. To quote the exceptions: “First. This respondent assigns these deductions (expenses of administration) as errors, and claims that by the law itself she is made a preferred legatee, is entitled to one-third of the estate after deducting the expenses of last illness, funeral and amount of all debts and claims paid. * * * Second. Such final account does not include interest upon the legacy so given to this respondent. * * *” Notwithstanding that no exception was taken to that part of the account which deducted expenses of last illness and total debts and claims paid from the gross estate before computing the widow’s share, and that the objector, in fact, submitted as a basis for computing such share the gross estate less these same expenses and debts, it is now asserted in this court that the gross estate is the proper basis for computation. The controversy in this case, as will be seen from the foregoing statement, arises over the question of the basis upon which to compute the widow’s legacy. Is she entitled to one-third of the gross estate; to one-third of the estate after subtracting the expenses of the last sickness, funeral, and debts, or is she entitled to one-third of the net or distributable estate; that is, one-third of what is left after the payment of all debts and expenses of administration? In addition, a minor question is presented as to whether or not interest should be allowed upon the legacy. In view of the fact that no issue was presented in the county court concerning the debts generally, that the counsel for the objecting legatee and appellant expressly recognized the propriety of deducting expenses of last sickness, funeral, and debts from the gross estate and leaving the remainder as the basis upon which to compute the legacy of one-third, and in view of the doubt as to the intention of the testator upon this subject this court will refrain from deciding whether or not the gross estate is subject to this deduction before determining the amount of the widow’s legacy. In this respect the decree of the county court as made with the tacit approval and acquiescence of the appellant will remain undisturbed. The questions presented here are not so much questions of law as of fact. The solution seems to us to depend altogether upon the intention of the testator, and intention is a question of fact to be determined by tlie court from the will. The statutes provide for giving full effect to — 1274 — this intention when ascertained. None of the various Code sections cited i>y counsel professes to more than lay down rules for carrying out the testamentary intention, either expressed or implied. For the most part, they are mere aids to construction. Pomeroy on Equity Jurisprudence, vol. 3, § 1135. We are of the opinion that all questions presented finally resolve to the one query: Plow much did the testator intend his wife to receive? What amount was intended when he provided that she should receive one-third of his “estate, real and personal?” Did he intend that she should receive one-third of the gross estate? She herself has otherwise construed the will, and we will not reverse this construction. Perhaps it was a correct interpretation. See Briggs et al. v. Hosford, 22 Pick. (39 Mass.) 288; Terry v. Smith, 42 N. J. Eq. 504, 8 Atl. 886, reversed Smith v. Terry, 43 N. J. Eq. 659, 12 Atl. 204. Then did he intend that the amount of her legacy should be affected by the costs of administration? If a portion of the estate had been left undisposed of so as to go to the heirs, it would seem that the amount of the legacy would not have been affected by the expenses of administration. In re Purdy’s Estate, In re Tompkins, 9 Misc. Rep. 436, 30 N. Y. Supp. 382; Estate of Traver, 145 Cal. 508, 78 Pac. 1058. It seems to us that the will, in fact, affords ample affirmative indication that the amount of the wife’s legacy was not to be affected by the expeñses of administration to any greater extent than the other general legacies. It will be observed that the testator provided for his wife before making provision .for any other legatee, thus evidencing an intention to deal with her at least as favorably as with any other class. He also provided for a class of residuary legatees. If it be held that the expenses of administration are to be subtracted before the basis is arrived at for determining the widow’s one-third, as was done below, it would be equivalent to holding, in the circumstances of this estate, that the widow was, to all intents and purposes, a residuary legatee. This conflicts with the expressed intention, for a group of residuary legatees is named excluding her from the class. It was clearly not intended that she should be so considered. We think, where the actual intention is doubtful, that that construction of a will should be adopted which tends to fix or make certain the amount of all legacies above the class of residuary legacies, rather than one which tends to aggravate the uncertainty by rendering the amount contingent upon indefinite quantities which do not appear to have been present in the mind of the testator, or, if present, to have been intended to have any peculiar effect on one of a naturally favored class. Furthermore, com — 1275 — petition and conflict between residuary legatees and general legatees should be avoided, if possible. We are of the opinion that the testator intended to give to his wife at least one-third of the property he would leave after payment of the obligations he had in mind when he made the first direction in the will. Since the amount of the legacy becomes fixed as' above indicated, we are not concerned with § 5722 of the Compiled Laws, upon which so much argument is expended in an effort to determine its application or nonapplication to the case in hand. Any remaining conflict between the widow and the residuary legatees concerning expenses is resolved by § 5720, which defines a residuary legacy by stating what is included within it. It is “only that which remains after all the bequests of the will are discharged.” Manifestly the bequest to the wife will not be discharged if a portion of the amount intended for her is taken to pay expenses. It follows that the legacy of the widow must be computed without taking into consideration the expenses of administration. Is the widow entitled to interest on her legacy ? The claim to interest is based upon § 5732, C. L. 1913, which provides that legacies bear interest from the time they are due and payable, except that legacies for maintenance or for the testator’s widow bear interest from the testator’s decease. As a matter of strict legal definition, the provision for the widow in the will in question is both a legacy and a devise, as it was at all times within the range of legal possibility for the executor to full}'' discharge the provision by a payment partly in money and by allowing her to succeed to her interest in the realty through the nonexercise of the power of sale. There was no mandatory direction or duty impose^to sell the real property; hence, no equitable conversion was effected. Penfield v. Tower, 1 N. D. 216, 46 N. W. 413. 3 Pomeroy’s Eq. Juris. § 1160. In view of the peculiarity of the provision made, we are of the opinion that it does not fall within the character of legacy upon which the statute requires interest to be paid from the date of the decease. Neither do we think it within the contemplation of the statute that the widow, in circumstances such as presented in the instant case, should be entitled to participate in the increment to the estate while in the hands of the executor and be allowed interest upon a share which is computed upon a basis that includes the increment. This process would be analogous to compounding interest. The judgment appealed from is modified, and the district court is directed to enter a judgment directing the county court to proceed with — 1276 — the final accounting and distribution in a manner not inconsistent with this opinion. Curistian son, J., concurs. Grace, C. J., concurs in the result.