(DOWNLOAD) "Elizabeth Hausner Et Al. v. John v. Melia" by Supreme Court of Nebraska " Book PDF Kindle ePub Free
eBook details
- Title: Elizabeth Hausner Et Al. v. John v. Melia
- Author : Supreme Court of Nebraska
- Release Date : January 05, 1982
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 64 KB
Description
The first question we shall consider is whether the testator intended to give to the remaindermen all income received by the life tenant and unexpended by her at the time of her death or whether it became hers absolutely so that it goes to her heirs. This is not a case where the testators intent is plain from the language used (cf. McAllister v. Hayes, 76 N.H. 108, 111), but is one in which that intent must be determined by a balance of probabilities. Romprey v. Brothers, 95 N.H. 258, 260; Colony v. Colony, 97 N.H. 386, 391. In so doing it seems that certain salient facts appear. The first is that the testator apparently considered income and principal separately, rather than treating his estate as a unit, as was the situation in Kimball v. Bible Society, 65 N.H. 139. In giving to his wife the remainder of his estate to use the income for life and the principal if necessary, he made a direct gift to her of the income. Ruel v. Hardy, 90 N.H. 240, 242. Her comfort and happiness and not the unity of his estate, which was to be split up eventually among four nieces and nephews, seems to have been the testators first concern. If, as was said in Kimball v. Bible Society, supra, 151, relied upon by the plaintiff, "slight evidence may be enough to prove an intention " that unexpended income shall become a part of the principal and unity of the estate be preserved, no reason appears why the converse should not be true. Here such evidence as there is points to a separation of income and principal. The wife was not directed to use the estate as a unit as was the situation in the Kimball case, (supra), 140, where she was bequeathed "all my personal and real estate during her natural life, to be used and managed by her as she shall see fit." Rather, she was to enjoy the income separately and then use the principal if necessary.