The language of the first clause of the will presents no ambiguity. The testator, desiring to provide amply for the support of his wife, gave her an estate for life in his entire estate, with the right, if her comfortable support should require it, to use a part or all of the property for that purpose, provided she should remain unmarried. Upon the decease of the testator a life *Page 415 estate in the Green-street house vested in her, which was liable to be defeated by her remarriage. As she did not remarry, her title to that property was not defeated; and as it was not required for the payment of the testator's debts, she was entitled during her life to its use, management, and income. The devise under the first clause was not of so much of the income as she might need, but of the entire use and income, without reservation or condition, if she remained unmarried. Her right to use the principal, or to encroach upon the remainderman's interest, was dependent upon her needs; but her right to the use of the property and to its income as a life tenant was absolute and unconditional. Burleigh v. Clough, 52 N.H. 267; Langley v. Farmington, 66 N.H. 431; Tilton v. Tilton,70 N.H. 325. Nor is a different result reached when the entire will and all competent evidence of the testator's intention is considered. There is no necessary inconsistency between this construction and the third clause of the will. Having given the Green-street house to his wife for life, the testator devised the remainder to Henry. Though he does not use the word "remainder," or employ any other expression qualifying or limiting the devise to Henry, it is apparent that in the third clause he was disposing of the property remaining after the termination of the life estate created by the first clause.
It is argued, however, that the provision in the third clause, "that my said wife shall have the privilege of a home there in case she desires it during her natural life," shows that the testator did not understand that he had already given her a life estate in the same property. But he may have desired to provide a home for her in the event of her remarriage, when her estate as life tenant would terminate and Henry's right to the exclusive occupation as owner of the fee would begin; and to provide for that contingency he may have made the provision above quoted. Such a construction would avoid the conflict suggested and give effect to all parts of the will. Hall v. Hall, 27 N.H. 275, 287. But whatever conclusion speculation may lead to, in regard to the reason for this provision in the will, the preponderance of all the legitimate evidence furnished by the case makes it reasonably certain, that the testator's general purpose to provide liberally for his wife, and to invest her with a life estate in all his property, was not abandoned when, in the preparation of his will, he reached the third clause. If any so-called rule of construction would lead to that result, so far as the Green-street house is concerned, it has been repudiated in this state, where the testator's intention, proved by competent evidence, is the controlling fact in the construction of his will. Sanborn v. Sanborn, 62 N.H. 631.
As the widow had a life estate in the house in question, Henry's *Page 416 occupation of it, if rightful, was authorized by her, not as one of the executors, but as a devisee under the will; and if he is chargeable with the rent for such occupation, it is plain he is not so chargeable as an executor of his father's estate. As a tenant, he may be under obligation to account for the rent of the Green-street house to the administrator of his mother's estate, but not to his father's estate, which has no reversionary interest in the income. As the mother's estate is not represented in this proceeding, the question of Henry's liability to her estate for the rent cannot now be decided. Not being chargeable with the rent of the house as executor, he cannot be credited in that capacity with money expended for taxes, repairs, etc. These are matters to be determined on an accounting with his mother's estate.
In the third case Ellen asks for a construction of the third clause of the will, in which Henry is required to furnish her a home in the Green-street house "in case she remains single and desires to have a home there." This right or privilege is unlimited as to duration, provided she remains single. The absence of any language in the will indicating that the testator intended to give Ellen a right to a home for a less term than her life, is evidence that he had no such intention, which is not overcome by a consideration of other competent evidence bearing upon the question.
It is also necessary to decide what meaning the testator attached to the word "home." Does it mean merely a place for shelter, and if so, in what part of the house is it to be located and of how many rooms is it to consist? Or does it include the right of the daughter to occupy the entire house as a member of Henry's family and to be supported at his table? if the latter construction is adopted, it must be assumed that the testator intended to impose a duty upon Henry, the performance of which might, and probably would, entail expenses upon him greater than the value of the house itself. As its value is stated to be $3,500, and as it is chargeable with the payment of $1,000 to the estate, it is not probable that the testator also intended to charge the support of his daughter upon Henry during her life. At the death of the testator she was about twenty-nine years of age, and it is not difficult to demonstrate that the present worth of the devise to Henry, if charged with the support of his sister so long as she might be expected to live, would be of little or no value. Without other evidence than what is furnished by the case, it is unreasonable to find that the testator intended such a result. It is presumed that he intended some pecuniary benefit to accrue to his son from the provisions of his will.
The provision for a home for the daughter in the Green-street *Page 417 house was intended to afford her such reasonable accommodations for a home as she might desire to enjoy there in connection with, but not as a member of, Henry's family. Gibson v. Taylor, 6 Gray 310. What part of the house she may occupy alone, and what part jointly with Henry, are questions of reasonable user, to be determined at the trial term in view of all the circumstances.
In consequence of the foregoing views the decree of the superior court is vacated.
Case discharged.
All concurred.
After the filing of the opinion in the original case the appellants obtained an amendment of the case by adding the following facts: The executor's account shows that all the income and more than $1,000 of the principal of the estate were expended for the support of the widow. This sum was made up from the proceeds of the sale of real estate, and sums advanced by Henry out of his own funds for which he charged the estate in the account. Before the trial in the superior court it was agreed that the expenditures were reasonably made for the support of the widow, and that they should be allowed. If Henry had paid a reasonable rent to his mother for the use of the Green-street house, the necessity for an expenditure of an equal amount of the principal of the estate for her support would have been avoided. She managed the property while she lived. Upon the filing of this amendment the appellants moved for a rehearing.