Opinion
No. 4974.
Submitted October 4, 1961.
Decided December 29, 1961.
1. Where the testator had acquired real property upon which there was a residence known as "118 Pearl Street" and another building which had been converted into a second residence known as "120 Pearl Street" and by will devised "my real estate located at 120 Pearl Street" it was held to have been the testator's intention to include therewith a reasonable amount of land to provide the devisee with access from the street to the building.
2. Where the testator devised certain real property to a life tenant with the remainder to the testator's daughter if she survives the life tenant and if she fail to so survive then the remainder was devised to the testator's son, and in the residuary clause named the daughter as the residuary beneficiary of all the testator's real and personal property it was held to be the testator's intent from the will as a whole that the son should take only in the event that he survive the life tenant and the daughter, thereby avoiding intestacy in the event both the daughter and son predeceased the life tenant.
Petition for a declaratory judgment in which the plaintiffs seek to determine the rights of the parties in certain real estate located in the city of Keene devised by the will of their father, Maurice E. Cotter, and later inherited in part by them as heirs-at-law of their brother, Edward M. Cotter, deceased intestate. The parties stipulated the facts and the Court (Grant, J.) transferred without ruling certain questions of law.
On March 11, 1893, there was conveyed to Michael Cotter, grandfather of the plaintiffs and defendants, a tract of land on Pearl Street in Keene. This tract of land was devised to Johanna Cotter, his wife, and by her to her son, James C. Cotter in 1913. During all this time the residence on the premises was known as "118 Pearl Street." The buildings on the premises consisted of a residence to which there were attached sheds at the rear and a barn at the rear of the sheds. After his acquisition of the premises in 1913, James C. Cotter converted the barn on the premises into a residence, thereafter known as "120 Pearl Street." The residents of "120 Pearl Street" have thenceforth used a driveway running southerly of the buildings as a means of access to and from Pearl Street. On October 7, 1922, James C. Cotter conveyed the premises in question to Maurice E. Cotter, father of the plaintiffs and defendants.
On September 19, 1955, Maurice E. Cotter executed his will in which he devised to the defendant Roger F. Cotter, "my real estate located at 118 Pearl Street" and to his son, Edward M. Cotter, "my real estate located at 120 Pearl Street." The devise to Edward M. Cotter of "120 Pearl Street" was in fee simple. The devise to Roger F. Cotter of "118 Pearl Street" was limited to "the term of his natural life" and provided that "on the death of my son Roger, I give and devise said real estate in fee simple to my daughter Agnes C. Meloon, of Keene, New Hampshire, if she survives him. Should my daughter, Agnes C. Meloon, predecease my son Roger, I then give and devise said real estate in fee simple to my son, Edward M. Cotter, of said Keene, New Hampshire." By the ninth clause of his will he devised all the residue of his estate, whether real, personal or mixed, "to my daughter, Agnes C. Meloon, of Keene, New Hampshire." On November 7, 1956, Maurice E. Cotter deceased, and on October 10, 1960, Edward M. Cotter died intestate, leaving no lineal descendants.
The Court transferred without ruling the following questions:
1. Whether the devise in fee simple to Edward M. Cotter of "my real estate located at 120 Pearl Street" was intended to include only a devise of the building numbered 120 Pearl Street or was intended to include with the building a reasonable amount of land and access thereto from Pearl Street?
2. Whether it was the testator's intention that Agnes C. Meloon have the remainder interest in "118 Pearl Street" after Roger's life estate in any event under the general residuary clause, the alternative remainderman Edward M. Cotter having deceased, or whether it was his intention for her to have the remainder interest only if she survived Roger?
Goodnow, Arwe Ayer for the plaintiffs.
Richard R. Fernald, guardian ad litem, pro se.
The devise to Edward M. Cotter of "my real estate located at 120 Pearl Street" is a common example of devises by popular name without any attempt at formal description. 4 Bowe-Parker (Rev. ed.) Page on Wills, s. 33.19 (1961). Such devises are generally sustained as valid and are considered as constituting a gift of the buildings and of the land used in connection therewith. Cowan v. Cowan, 90 N.H. 198; Marston v. Stickney, 58 N.H. 609. The fact that the testator referred to the residences at 118 and 120 Pearl Street as real estate and in exactly the same language indicates beyond any doubt that he intended to devise a reasonable amount of land with access therefrom to Pearl Street, and that he did not intend in the case of the devise of 120 Pearl Street only a building subject to removal. This is the usual sense in which the words would be used (RSA 21:21) and in the context of the will as a whole there is no reason to believe that the testator intended that one of the devisees should be without the benefit of land or access particularly in view of the past use of these premises. Annot. 12 A.L.R. 1179.
It is the plaintiffs' contention that the alternative remainder interest devised to Edward M. Cotter of the real estate located at 118 Pearl Street should pass as intestate property. If the first clause of the will is taken by itself, there is validity in this argument. That clause reads as follows: "FIRST: I give and devise to my son, Roger F. Cotter of Keene, New Hampshire, my real estate located at 118 Pearl Street, Keene, New Hampshire, to have and to hold during the term of his natural life. On the death of my son Roger, I give and devise said real estate in fee simple to my daughter, Agnes C. Meloon, of Keene, New Hampshire, if she survives him. Should my daughter, Agnes C. Meloon, predecease my son Roger, I then give and devise said real estate in fee simple to my son, Edward M. Cotter, of Keene, New Hampshire." By this clause alone the daughter, Agnes C. Meloon, would have a remainder interest subject to defeasance if she fails to survive Roger F. Cotter.
Since Edward predeceased Roger the question arises whether the testator intended that Edward should take only in the event that he survived Roger. If he so intended this would create intestacy in the event Agnes also predeceased Roger unless the property passed under the residuary clause of the will. However Agnes under the ninth clause of the will is the residuary beneficiary of both realty and personal property. The residuary clause is not conclusive against partial intestacy but supports the position that it was not intended by the testator. West v. Chase, 92 N.H. 104; Merchants c. Bank v. Berry, 93 N.H. 388; Kemp v. Dowling, 94 N.H. 198.
It is true in several cases where the court has failed to find a partial intestacy in a testamentary disposition that the wills have been elaborate or detailed. Roberts v. Tamworth, 96 N.H. 223; Jacobs v. Bean, 99 N.H. 239. This does not mean that partial intestacy may not be avoided in the simple will with a general residuary clause which may be terse in style and laconic in nature. Cowan v. Cowan, 90 N.H. 198, 199; In re Lathrop Estate, 100 N.H. 393. The will construed as a whole contains no reasonable indication that any part of the estate should pass as intestate property. 4 Bowe-Parker (Rev. ed.) Page on Wills, s. 30.14 (1961). Upon the stipulations and record in this case Agnes C. Meloon has a vested remainder in the premises at 118 Pearl Street regardless of whether she survives Roger.
Remanded.
DUNCAN, J., dissented in part; the others concurred.
The assumption that a question of intestacy may arise in this case seems to me without warrant. The testator Maurice E. Cotter plainly indicated by the first clause of his will his intention that at the death of his son Roger the property known as 118 Pearl Street should go to his daughter Agnes if she survived Roger, otherwise to his son Edward, to whom the premises at 120 Pearl Street were left by the second clause of the will. If it was probable that Agnes, as the youngest of the three, would outlive both Roger and Edward, yet the possibility that she might predecease Roger was expressly recognized by the will. So also the possibility that Edward might predecease Roger must have been apparent to the testator. Yet his devise to Edward, unlike that to Agnes, was not conditioned upon his survival of Roger, but was "in fee simple" with no requirement that he survive either Roger or Agnes.
In my judgment, Agnes, who is now living, has a vested remainder in 118 Pearl Street, subject however to defeasance if she should predecease the life tenant Roger. Kennard v. Kennard, 81 N.H. 509, 511; Simes Smith, The Law of Future Interests (2d ed.) s. 149 at p. 160. Since Edward survived the testator, his interest likewise was vested, although subject to defeasance. Osgood v. Vivada, 94 N.H. 222, 225. At his decease, his executory interest descended to his heirs, and remains subject to defeasance should Agnes survive Roger. Upton v. White, 92 N.H. 221, 226; Colony v. Colony, 97 N.H. 386, 390-391; Chisholm v. Bradley, 99 N.H. 12, 14. Under this construction of the will no intestacy can occur, and no occasion is presented to consider the effect of the residuary clause of the will.