1. What, if anything, is Marion entitled to under the sixth clause of Richard's will? Strictly speaking, there was nothing coming to Richard as an heir of Fred. The only way in which he acquired a title or right to any portion of Fred's estate was by the latter's will. He was a legatee and devisee of Fred. Being the executor of Fred's will, he must have known this fact. It cannot be doubted that he intended to give Marion something that was coming to him from her late husband's estate. Neither of the parties to the action questions this fact. He must, therefore, have used the word "heir," not in its technical sense, but in its most general sense, as indicating the person upon whom property devolves on the death of another, either by law or by will. Cent. Dict. If he had used the words "legatee and devisee" instead of "heir," he would have expressed his intent more specifically.
But it is said by James that there is a latent ambiguity in the description of the property bequeathed by this clause, and that testimony of the understanding between him and Richard, by which the personal property acquired by the latter under Fred's will was to be equally divided between Sarah, James, and Richard, is competent for the purpose of removing the ambiguity. Apparently the only subject to which the description can refer is the property coming to Richard as legatee and devisee of *Page 580 Fred. It is not alleged that Richard, before making his will, had actually transferred portions of the legacy to Sarah and James by a valid conveyance, but only that there was an understanding between Richard and James that the personal estate should be equally divided among the three. It does not appear that the understanding was of such a character as to bind Richard to its performance. In short, it is not shown that, at the date of Richard's will, there was any binding contract in existence which could render the description ambiguous in the respect suggested. The understanding on which James relies is not sufficient for the purpose, and cannot be considered as evidence in construing the will. Marion is entitled to whatever was coming to Richard at the time of his decease from Fred's estate.
2. What interest in, and power over, Richard's estate did the plaintiff acquire by the tenth clause of Richard's will? An analysis of the clause may aid in its construction. It contains in the, first place a devise of the residue of the testator's estate to the, plaintiff for and during her natural life. It then confers on the plaintiff "power to dispose of all and every portion thereof in her lifetime, if she shall find the same necessary to her comfortable support and maintenance, or shall desire so to do." Then, as if this provision was thought not to be sufficiently explicit, it grants the plaintiff three rights specifically: (1) The right to sell and convey any or all of the estate without license from the probate court; (2) the right to manage the estate as if the devise "were entirely absolute;" and (3) the right to spend the whole income of the same and the principal, if she finds it necessary to do so for her comfort, or desires to do so. Finally, as if to remove all possibility of doubt in respect to the nature and extent of the interest and power granted, it contains the following: "My will and wish being that she shall fully use, have, and enjoy said estate as if it were her own absolutely during her lifetime."'
The estate thus devised is, by express terms, an estate for life, but powers are annexed to it which greatly increase its usefulness, although they do not enlarge it to a fee. Burleigh v. Clough, 52 N.H. 267; Kimball v. Society, 65 N.H. 139, 151, 152; Langley v. Farmington, 66 N.H. 431, 432.
The question to be answered relates principally to the extent of the plaintiffs power to use the property devised. Is this power limited to providing for her reasonable necessities, or may it be exercised to gratify her desires? This question is answered by the express grant of "the right to spend the whole income of the same [residue] and the principal, if she finds it necessary to do so for her comfort, or desires so to do." Besides this provision, there are other provisions that tend very strongly to show the same intention. As has been seen from the foregoing analysis, *Page 581 there is a prior provision expressing this intent, but with less certainty. The testator's final expression of his "will and wish" that the plaintiff "shall fully use, have, and enjoy said estate as if it were her own absolutely during her lifetime" is unambiguous and emphatic to the same effect. The words "during her lifetime" were evidently intended to limit the duration of her enjoyment of the estate and powers. They may be transposed without affecting the sense, so that the sentence will read, "My will and wish being that she shall fully use, have, and enjoy said estate during her lifetime as if it were her own absolutely." The bequest to Olivet College, in the ninth clause of the will, was made subject to a condition placed in the control of the plaintiff. If, in her judgment, the condition of the testator's estate did not warrant the bequest, it was to be void. The devise over after the termination of the life estate was not of the same property that was given to the plaintiff for life, but only of what remained of that property at her decease, "whether of principal or of accrued income, in whatever form the same may be." The provision that the plaintiff should not be required to give a bond for the faithful performance of her duty as executrix, or return an inventory of the estate, or render an account of her administration, is weighty evidence on this point. There is no conflict in the evidence. It all tends to prove an intent that the plaintiff should have power to use the property during life as she desired, or "as if it were her own absolutely." If she desires to live in a more expensive style than she has lived in the past, or to travel, or to make charitable gifts, or to do any other thing within the bounds of good faith, she has power to use for the purpose the property bequeathed to her. Of course she must act in these matters in good faith, and not squander the estate for the mere purpose of preventing it from going to the remainder-man. The power is not sufficiently extensive to allow her to dispose of the property by will. It is only to be exercised during the active enjoyment of the life estate and in aid of that enjoyment. Whatever of the property shall remain after she has used in good faith so much of it as she desires, will go to the remainder-man under the eleventh clause of the will.
Case discharged.
All concurred. *Page 582