Opinion
No. 4713.
Argued March 4, 1959.
Decided April 7, 1959.
1. By the terms of the testatrix' will devising the residue of her estate "in equal shares" to her daughter and sister and further providing that "in case of the death of either . . . the share of such decedent [is bequeathed] to the survivor," there was intended a gift in fee to the daughter and sister, with the survivor taking all only in the event that one of them predeceased the testatrix.
2. Where, in such case, neither devisee predeceased the testatrix, each took an undivided one-half interest in fee of the residue of the estate.
3. The common meaning attributed to words of survivorship is that they refer to the death of the devisee in the lifetime of the testatrix.
CERTIFICATION, under RSA 547:30, to the Supreme Court to determine the meaning of the residuary clause in the will of Elizabeth A. Luce, who died in 1954. Clara E. Woods died December 30, 1956, and the administratrix Evelyn S. Deming was appointed January 4, 1957. Among the assets inventoried in the Woods estate was an undivided one-half interest in certain real estate in Keene.
This property was formerly owned by Mrs. Luce. In her will, after leaving $100 to her husband in lieu of all his rights in her estate, she provided that "all the rest, residue and remainder of my property, whether real or personal, and wherever situated, I give, bequeath and devise in equal shares to my daughter, Jessie Evelyn Starkey, of said Keene, and my sister, Clara E. Woods, of said Keene. In case of the death of either the said Jessie Evelyn Starkey or the said Clara E. Woods, I give, bequeath and devise the share of such decedent to the survivor." The administratrix of the Woods estate, Evelyn S. Deming, formerly Jessie Evelyn Starkey, claims that as daughter of Mrs. Luce she takes all her mother's real estate to the exclusion of Clara's heirs. In her petition, she asks us to answer the following question: "1. Did the said Clara E. Woods inherit in fee an undivided one-half interest in said real estate under the will of the late Elizabeth A. Starkey Luce? 2. In the event the foregoing question is answered in the negative, should the inventory be amended to exclude said undivided one-half interest in said real estate from the estate of Clara E. Woods?"
Further facts appear in the opinion. Transferred by Kenneth T. Shaw, acting judge of probate for Cheshire county.
Howard B. Lane (by brief and orally), for the administratrix.
Faulkner, Plaut Hanna (Mr. Plaut orally), for Florence Cram and Doris Cocco, heirs of Clara E. Woods.
The basic question presented is whether Clara E. Woods took a vested interest in fee under the will of her sister, Elizabeth A. Luce, in certain real estate, so that upon her death it descended to Clara's heirs, Florence Cram and Doris Cocco, or whether it passed to Mrs. Luce's only daughter, Evelyn S. Deming. The answer depends on what the testatrix meant when, after bequeathing all the remainder of her estate in equal shares to her daughter and sister, she added the words: "In case of the death of either . . . I give, bequeath and devise the share of such decedent to the survivor." Although as administratrix of Mrs. Woods' estate, Mrs. Deming inventoried a "1/2 interest in Land and buildings" in the disputed real property she presently claims this was error and that she takes it all as survivor under Mrs. Luce's will.
It is axiomatic that the law favors the early vesting of interests (Merchants c. Bank v. Curtis, 98 N.H. 225, 230; 57 Am. Jur. 803) in the interest of certainty, the avoidance of complications, and the expeditious settlement of estates. Furthermore, the common meaning attributed to words of survivorship is that they refer to the death of the devisee in the lifetime of the testatrix. Whitney v. Whitney, 45 N.H. 311; anno. 51 A.L.R. (2d) 205. The practical difficulties of applying the construction urged by the administratrix, especially with reference to the disposition of personal estate, are obvious and militate against her claim. Cowan v. Cowan, 90 N.H. 198, 201. Furthermore, the words appear in themselves significant. Since death is certain, there seems no point in using the words "In case" unless they were intended to refer to the death of either of the devisees before that of the testatrix. Anno. 51 A.L.R. (2d) 205, 206.
We are not unmindful of the administratrix' argument that Mrs. Luce's main concern was her sister, Clara, and her daughter, the administratrix, and that since she did not mention her brother, Samuel Luce, and another sister, Florence Cram, it must have been her intent that neither they nor their children should share in her estate. We agree that her real interest was in her daughter and her sister Clara, but had she been desirous of arranging matters so that no child of her brother or Mrs. Cram should take under her will, she could easily have done so.
In the case of Mulvanity v. Nute, 95 N.H. 526, cited by the administratrix, the will unequivocally expressed an intention that a joint tenancy be created. The testator gave certain property to his son and sister as "Joint Tenants" and stated that "upon the decease of one, the title to vest in the survivor." He expressed the desire that his son and sister have the right to occupy the premises during their lifetime. The court held that a joint tenancy in fee was created. It added that in order to establish the unusual estate of a life estate with remainder to the survivor, which is what the administratrix claims was created by Mrs. Luce's will, "clear and unambiguous language" would have to be used. Id., 528. See also, RSA 477:18. We find no such language in this will indicating an intent to set up such an uncommon estate, but rather it expresses a reasonably plain purpose to make a gift in fee to two persons with the survivor taking all if, but only if, one of them died before the testatrix.
In all the circumstances, we believe the testatrix, when she said "In case of the death of either," referred to death in her lifetime. Since this did not occur, it follows that Clara E. Woods took an undivided one-half interest in fee in the disputed real property which was properly inventoried as part of her estate.
Remanded.
All concurred.