French v. Hatch

Gilchrist, C. J. French is administrator de bonis non, with the will annexed, of William Gardner, and Hatch is administrator de bonis non, with the will annexed, of Sarah Gardner. William Gardner died on the 10th of April, 1834. He made his'wife, Sarah Gardner, executrix of his will, and by it made the following bequest: “ Having implicit confidence in my beloved wife, Sarah Gardner, I do hereby will and bequeath to her all the property, both real and personal, that I am possessed of, during her life, except my farm in Wendell; no part of the bank stock is to be disposed of, unless her comfort should require it, but it is to be apportioned to my relations, according to her discretion, to be enjoyed by them after her decease.” By the will, the testator’s nephew, Andrew, who had' the care of his farm in Portsmouth, was to account to Sarah for one half of every thing raised on the farm, agreeably to-the customary mode of tenants. The inventory of the estate, as returned by her, was as follows: Real estate,................................ $10,450,00 Personal estate, exclusive of stocks,............ 1,094,14- Stocks, Union Bank,................ $3,708,00 “ Rockingham Bank,.......... 1,000,00 “ State Bank,..,. 6,000,00. “ Piscataqua Bridge, 105,00 - 10,813,00 ... 1,225 00 23,582,14 — 346 — On the 17th of July, 1841, she sold the shares in the State Bank, and received therefor $5,685. On the 10th of September, 1839, she borrowed of Mark Walker $1,000, for which she gave her note, secured by a pledge of the Union bank stock, which was sold to pay the note. She lent the money to D. I). Wendell, who gave his-note therefor, signed also by A. Q,. Wendell, which has never been paid. She also borrowed sundry sums of the Union Bank, giving her note, and pledging two shares in the bank,, which were sold to pay the note. French was appointed administrator de bonis non, with the will annexed, of William Gardner, on the 8th of November, 1842. The inventory of the personal property amounted to $2,868,12. French seeks to recover the money which Mrs. Gardner received from the sale of the shares in the State and Union Banks, on the ground that she had no right to dispose of them, and also the cash on hand. French presented his claim to the commissioner on Mrs. Gardner’s estate, and was allowed the sum of $8,889,01, balance of property in her hands, as executrix of William Gardner, and from the decree accepting the report, Hatch appealed on the 8th of August, 1848. The first count in French’s declaration was for money had and received by Mrs. Gardner, on the 9th of August, 1841, from the estate of William Gardner, to his use as administrator. The second count alleges the receipt of the money as aforesaid, that on the 10th of August, 1841, she died; that French was appointed administrator on the 1st of January, 1843; that Hatch was appointed administrator on the 1st of January, 1844, and in that capacity became indebted to French as administrator. The third count alleged that the estate of Mrs. Gardner, on the 1st of January, 1844, being indebted to the estate of William Gardner, in the sum of $10,000, for money had — 347 — <and received by her in her life time to the use of the estate of W. Gardner, Hatch, as administrator, promised to pay, &c. For the defence, it was shown that Mrs. Gardner died testate, on the IGth of August, 1841. By her will, she apportioned among the relations of W. Gardner so much of the bank stock as remained undisposed of. Hatch, in his account, charged her with personal property included in her inventory, and credited her with the same property as given her by the will of W. Gardner. French moved that the Union and State Bank stocks and the cash on hand be deducted from the credit, on the ground that the personal estate was given her only during her life, and she had no right to dispose of it, and the judge ordered that the deduction be made, thus leaving a balance in her hands of $8,801. From the decree Hatch appealed, represented her estate as insolvent, and a commissioner was appointed. French pvesented to the commissioner a claim for this balance of $8,801, and the only evidence offered by him was a copy of the decree. The commissioner allowed it, and the judge of probate accepted his report, from which decree Hatch took this appeal. At the December term, 1847, the superior ■court reversed the decree, so far as related to the deduction of the bank stock, and the cash from the credit side of her account, and upon a re-settlement of her account, according to the decision of the superior court, a balance was found an her favor of $24. It was also shown that W. Gardner was a hospitablé man, liberal in his contributions and generous to his poor relations, that he kept a horse and carriage, a man and two maid servants, that he lived in a large house with a large garden, that after his death Mrs. Gardner lived in the house, and kept up the same establishment that he had done, and was hospitable and entertained considerable company; that her family consisted of herself and four ladies, as in W. Gardner’s lifetime; that she was an invalid, and unable to look after her — 348 — domestic affairs, which was done for some years by her sister, Susan Purcell. She paid a minister’s tax, and other contributions at St. John’s Church. • Her taxes on the property were about $90 a year. Other families in Portsmouth, who lived in no better style than she did, expended from $1,200 to $1,500 a year in support of their families. She shingled and painted the house, and made some repairs on the fences and wharf. Mrs. Gardner did not receive all the income from the farm to which she was entitled, as the testator’s nephew did not deliver her one half of the produce, as the will required, but how much he fell short did not appear. The Union Bank suspended the payment of dividends for some years prior to 1842, though the stock was about par when the business of the bank was closed. The Rockingham bank suspended paying dividends for some years, and in other years paid a dividend of four per cent. Mrs. Gardner was advised by counsel that she might sell the bank stock, if her necessities required it — if it was necessary in order to enable her to live in the same style in which Mr. Gardner lived. About the time of the sale she said it was necessary to sell the stock to pay her debts, but no debts were shown except one of $526 for groceries, and one of $600, for a store account of two years’ standing, which she paid before her death. Mrs. Gardner left sundry notes, which came into the possession of her administrator, including one for $1,000 against B. B. Wendell, which cannot be collected. There was, also, a claim against Andrew Gardner, for arrears of rent for the farm. Mrs. Gardner and her sisters owned a house in Portsmouth, appraised at $2,500. It also appeared that W. Gardner lived within his income. At the July term, 1851, it was held that Mrs. Gardner’s estate should be charged with the money lent by her and with the arrears of the income of the Portsmouth farm, as no — 349 — «reason was shown why they might not have been recovered, but as there were not facts enough to enable the court to judge in relation to the income, a further inquiry was directed. The case was tried upon the pleadings as they appear, and the plaintiff contended that if Mrs. Gardner had a right to sell any of the bank stock, she was bound to leave the principal untouched, and he was entitled to recover the cash on hand and the proceeds of the stock, whatever might have been her necessities. The defendant denied his liability for the cash, as she had spent it, or for the avails of the bank stock, as she had, without fraud, judged the sales necessary for her “ comfort.” He also alleged that the suit should have been for the stock instead of the proceeds. The court held that the defendant was liable for the cash on hand and for the proceeds of the stock, which was sold to obtain money to lend to Wendell. Also that the plaintiff was entitled to recover the sums for which the other stock was sold, except so far as the jury should believe the sales necessary for her comfort, the burden of proving which was on the defendant, and that she was bound to make use of all other means which could reasonably be made available, before resorting to a sale of the bank stock; that in deciding what was necessary for her “ comfort,” they should consider the style in which her husband had lived, and in which she and her acquaintances had been accustomed to live, and that if her debts and necessities had arisen from her extravgance or improvidence, she still had a right to dispose of the stock to such an amount as her u comfort,” at that time, required, of which the jury were to judge. The court declined to instruct the jury that she had a right to live in the same style, after her husband’s death, that he had lived in. The main question in this case is, what power over the bank stock was given by the will to Mrs. Gardner 1 The provision made her by the will was most libera.!. — 350 — She has ail the testator’s property, during her life, except his farm in Wendell, estimated to be worth $650, leaving about $23,000, of which she had the use. The only restriction, and that is not upon the use but upon the disposition, is that no part of the bank stock is to be “ disposed of unless her comfort should require it.” So slight a limitation as this cannot be a cause of complaint, for, excepting the farm in Wendell, she had all the income the testator enjoyed. He lived within his income, and admitting that we are not to expect from her the financial skill of a man of business, as her husband probably was, she had sufficient income to procure every thing necessary for her comfort, using the word in the most liberal sense. Her cash income, besides the house and all the conveniences of living, was about $1,100, and it deserves serious inquiry whether, with the most ordinary prudence, her “ comfort,” with a reasonable construction of the word, required her to dispose of the stock from which a large part of her income was derived. Now the will is to have a reasonable construction, and the intent of the testator is to be carried into effect, if it may be* Her comfort did not require that the Union Bank stock should be sold, and the money lent to Wendell, which was in substance done, nor that it should be sold for the purpose of paying her debts, for it does not appear that her comfort required her to incur any debts, or that there was any need of her being indebted at all. What was done with the proceeds of the State Bank stock does not appear. There is nothing to show that her comfort required her to dispose of it. It is very clear that Mrs. Gardner was not the unqualified owner of the property bequeathed. Where there is a devise for life, in express terms, a power of disposal annexed does not enlarge it to a fee, but where to a general devise, without any specification of the quantity of interest, an absolute power of disposal is annexed, the devisee takes a fee* This — 351 — distinction is carefully marked and settled in the case of Jackson v. Robins, 16 Johns. 588, and cases cited by Kent, Ch. The bequest is for life, with an express limitation upon her power of disposing of the stock, unless her comfort should require it. The instruction to the jury that she might dispose of the stock, if her necessities arose from her extravagance or improvidence, was, we think, incorrect. Buch a power is directly opposed to the object of the will, which was that this fund should not be touched unless for her comfort. It certainly could not have been the intent of the testator that she might waste all .the property but the stock, and then spend that, on the ground that her comfort required it. Buch would be an unreasonable view of the case, and this result could not have been in the testator’s mind when he expressed the implicit confidence stated in the will. It would be tantamount to an unqualified gift to her, and this was not the case, if any effect be given to the clause relating to the stock 5 and we are bound to give effect to every part of the will, if that may legally be done. There is no evidence that there was any necessity for the sale of the stock for her comfort. She appears to have sold it just as she pleased. If, by prudent management, the rest of the property had been exhausted, and her comfort required it, she might have sold the stock. We think, also, that the court erred in declining to charge the jury that she had a right to live in the same style her husband lived in. As it appeared that he lived within his income, and as she had the same income, by the words of the will, why might she not live as he did? The same income that maintained his family would be sufficient for her, as the number was less by one. In fact, she might live as she pleased, subject only to the limitations of the will. He lived within his income, and lived in a generous and hospitable manner, and she might do the same, provided she — 352 — did not encroach on the bank stock. This his comfort did not require, and there is nothing in the case that shows that any thing more was necessary for her comfort than for his. Indeed, his mode of life is not an unfair criterion of what she would require. In the absence of evidence showing that more would be required for her comfort than for his, we may assume that if her expenses exceeded his, they were unreasonable, and that she should not sell the stock to defray them. She is chargeable with the cash on hand.. This is part of the property of which she had the use only during her life. This does not belong to that description of property of which the use consists in the consumption. It is property which, in the ordinary course of business, yields an income. But she should not be charged with any interest on the property, as the will gives her the use of it for her life. It is argued that the bequest of the money and articles gave her an absolute estate in both. If so, it would follow that an estate for life cannot be given in chattels. But the contrary doctrine is well established. Dow v. Jewell, 1 Foster’s Rep. 514. The use, unless the article be in its nature perishable, does not consist in its consumption. In the case of Marston v. Carter, 12 N. H. Rep. 159, furniture was bequeathed to the testator’s daughter, during her life, and after her decease to her children, and it was held that the limitation over was valid. Gillespie v. Miller, 5 Johns. Ch. 21. In Westcott v. Cady, 5 Johns. Ch. 346, Chancellor Kent says the law is too well settled to be drawn in question at this late day, that a limitation of personal goods and chattels or money in remainder, after a bequest for life, ■is good. It is said, in the argument, that the remarks of Richardson, C. J., in the case of Weeks v. Weeks, 5 N. H. Rep. 527, as to the liability of the estate of the holder for life are mere obiter dicta, and not supported by authority or principle. For this, reference is made to 1 Story’s Eq. § 604, in which — 353 — we find nothing on the point. It is true, that in Weeks v. Weeks, the main question was not as to the liability of the estate of the tenant for life. The question was whether a widow, who had personal estate bequeathed to her during life, was bound to furnish security for the benefit of those in remainder. The court say, “if, when she dies, she leaves any estate, it will be answerable. If she marries again and the property comes into the hands of a second husband, he will be accountable.” Of course he would not be liable unless she were so ; and if she were liable her estate will be so. In Upwell v. Halsey, 1 P. Wms. 651, the testator gave ¿£10 to his sister, and directed that such part of his estate as his wife should leave of her subsistence should return to his sister. Upon the death of the wife who had married a second husband, the sister sued him for an account of this personal estate, and Lord Hardwicke said “ it is now established that a personal thing or money may be devised to one for life, remainder over, and as to what has been insisted on, that the wife had the power over the capital or principal sum, that is true, provided it had been necessary for her subsistence, not otherwise; so that her marriage was not a gift in law of this trust money. Let the master see how much of this personal estate has been applied for the wife’s subsistence, and for the residue of that which came to the defendant, the second husband’s hands, let him account.” In Weston v. Cady, 5 Johns. Ch. 334, a testator bequeathed personal property to his wife for life, with a remainder over. She died, and a bill was filed against her executors for an account of the personal estate. It was decreed that the plaintiffs were entitled, out of the assets of the widow in the hands of the defendants, to payment of the capital or principal, without interest, of the money and stock devised by the testator to his wife, for her life. The position, then, in Weeks v. Weeks seems to be well established by high authority. Verdict set aside.