Opinion
No. 4816.
Argued February 2, 1960.
Decided February 29, 1960.
1. While it is the general rule that when property is devised by will to the testator's heirs or next of kin they are to be ascertained as of the date of the testator's death, the rule must yield if the intent of the testator is otherwise.
2. Hence, where the testator bequeathed his real property to his daughter for her life and upon her death "should she leave no children" the property "shall return to my heirs" and "shall remain in my heirs' families" it was the testator's apparent intent from the will as a whole and surrounding circumstances that his heirs were to be determined as of the date of death of his daughter, the life tenant.
3. In such case, where the heirs of the testator, at the time of death of the life tenant, stood in equal degree of relationship to the testator, they inherited equal shares.
PETITION, for partition and distribution of the proceeds of a sale by a commissioner of certain real estate formerly belonging to Joseph B. Young, the testator and the common ancestor of the plaintiffs and the defendants. The Superior Court transferred without a ruling the question of law as to the respective interests of these parties.
The material portions of the will are as follows: "Second: — I give bequeath and devise to my daughter Bertha A. Young Platts, my home place located in said Manchester, on the Candia road, the same containing one acre more or less with the buildings thereon, to have and to hold during her natural life, at her death should she leave no children, then said Estate shall return to my heirs, as it is my desire that said Real Estate shall remain in my Heirs families, Reserving however for my daughter Dora L. Young Lake, a portion of the land where her hen houses and hen yard is for her use as long as she may desire the same, and to use the same for said use, permitting my Heirs however to sell said Real Estate should they deem best, when said daughter Bertha A. Young Platts may have passed away, or may not care for said Real Estate." In the third and fourth clauses, there followed devises of other land to a son and two daughters.
In the fifth clause, the testator provided that "All the rest and residue of my Estate, both Real and personal and mixed, wherever situated or located, I give and bequeath and devise to my children and their Heirs forever, the same to be divided satisfactory." At the time of the testator's decease, he was survived by his daughter Bertha, two other daughters, Dora L. Lake and Mabel R. Young Watson, and a son, Frank N. Young. Dora died intestate without issue, survived by her remaining brother and sisters. Mabel died survived by the plaintiff Wesley R. Watson, her son; and Frank, upon his death was survived by a son and two daughters, namely Waldo N. Young, Frances Young and Edith Young, the defendants in the present case. Bertha Platts, who died without issue, left a will which contained the following provision: "I hereby give, bequeath and devise to Wesley Watson all my right, title and interest in and to a certain tract or parcel of land, with the buildings thereon . . . My interest therein being an undivided 1/4th interest derived under the Will of my father, Joseph B. Young."
The plaintiff Wesley Watson claims that individually he possesses an undivided one-third interest in the homestead premises at Candia, that he also owns an additional undivided one-third interest under the will of Bertha, and that the defendants each own an undivided one-ninth interest. The defendants in turn claim that they are each entitled to a one-fourth interest in the homestead property and therefore in the funds derived from the sale of it.
Further facts appear in the opinion.
Reserved and transferred by Morris, J.
Broderick, Manning Sullivan (Mr. Manning orally), for the plaintiffs.
Walter A. Pillsbury (by brief and orally), for the defendants.
The issue before us is whether the testator, Joseph B. Young, intended that his heirs were to be ascertained as of the date of his death or at the time of the decease of the life tenant, his daughter Bertha A. Young Platts. It is elementary in such situations that each case must be decided upon its own peculiar facts and that previous decisions, unless depending on practically similar facts, are neither controlling nor in most instances even persuasive. Holmes v. Alexander, 82 N.H. 380, 383; Remick v. Merrill, 80 N.H. 225, 227.
Here the will was obviously not the work of an experienced draftsman, and the language is not always as clear as one might wish. Nevertheless, certain salient facts appear. It was drawn in 1915, and it was then reasonable for the testator to assume that his daughter Bertha, to whom he gave a life-estate, would live for many years. That he had in mind that she might have children is obvious from the provisions of his will. However, he provided that if at her death "should she leave no children, then said Estate shall return to my heirs, as it is my desire that said Real Estate shall remain in my Heirs families." He further added the provision that his heirs could sell his real estate when his daughter Bertha "may have passed away." Not only do these provisions look to the future (Colony v. Colony, 97 N.H. 386, 392), but the testator's primary intent seems reasonably plain that in the event of his daughter Bertha's death without children, he wished to be certain that this family homestead would remain a family homestead and "return" to those who should be his heirs at the time of her death. Romprey v. Brothers, 95 N.H. 258, 261; see Holmes v. Alexander, 82 N.H. 380, 383. Furthermore, to follow the plaintiffs' contention and permit Bertha to dispose of the property by will would be to give her the power to transfer it to someone outside the family, which seems to us to be the very contingency the testator wished to avoid.
We are aware of the general rule that when property is devised or bequeathed by will to heirs or next of kin, they are to be ascertained as of the date of the testator's death. Simes v. Ward, 78 N.H. 533. However, it is equally true that this general rule must yield to the intent of the testator. Burpee v. Picard, 94 N.H. 307, 309. Here the impression produced by the will as a whole, construed in the light of the surrounding circumstances, is that the testator desired his heirs to be determined as of the date of the death of his daughter Bertha, the life tenant.
At the time of her death, the heirs of the testator were all his grandchildren, and standing in equal degree of relationship to him, they should therefore inherit equal shares. Remick v. Merrill, 80 N.H. 225, 230.
It follows that the proceeds of the sale of the disputed property are to be distributed one-quarter to the plaintiff and one-quarter to each of the three defendants.
Remanded.
All concurred.