Decided July 1, 1952.
A petition by an administratrix for advice and instructions, although affecting the distribution of the estate, was properly before the Superior Court. The testatrix in disposing of the residue of her estate intended by the use of the words "eveningly devided between my brother, and my Nieces and Nephews" a division into two parts, one to her only brother living at the date of execution of her will, and the other as a class gift to be distributed per capita to her nieces and nephews living at her decease. In such case, where the brother predeceased the testatrix his share is taken by his son as sole heir-at-law by virtue of R.L., c. 350, s. 12.
PETITION, by an administratrix for advice and instructions. Pearl I. Tate is the administratrix with will annexed of the estate of Nellie L. Potter who died at Manchester on December 30, 1949. Nephews and nieces of the testatrix, and if deceased, their representatives, grandnephews and grandnieces and unknown nephews and nieces of the decedent or their representatives, being all her heirs-at-law, were named parties defendant and duly notified but have not appeared in the proceedings.
A sheet of stationery, apparently in her own handwriting, and found among her effects, was allowed as decedent's last will and testament. The material portion of the will is as follows: "Third. After settling my estate that all my personal and real estate at time of death, be eveningly devided between my brother, and my Nieces and Nephews . . . ."
When she executed her will on August 2, 1927, her only living brother, William Hooper, was residing with her.
Petitioner seeks instructions as to the proper construction of the above residuary clause so as to enable her to distribute the estate accordingly. All questions of law raised thereby were reserved and transferred by Wescott, J., without ruling.
Warren, Wilson, Wiggin Sundeen, for the administrator, furnished no brief.
Although questions affecting the distribution of this estate are involved, the matter was properly before the Superior Court. Duncan v. Bigelow, 96 N.H. 216, 218; Roberts v. Tamworth, 96 N.H. 223, 227. Here again what the testatrix intended by what she said in her will is the determinating factor. Colony v. Colony, 97 N.H. 386.
The wording of the will "eveningly devided between my brother, and my Nieces and Nephews," instead of, for instance, "evenly divided among my brother, nieces and nephews," tends to indicate that she intended the residue to be divided into two equal parts. The use of the words "devided between" and the fact that her only living brother William Hooper resided with her leads us to conclude that she wanted this brother to have one half of the estate and her nieces and nephews the other half.
Her brother having predeceased her, his half of the residue goes by virtue of the provisions of R.L., c. 350, s. 12, to his sole heir-at-law, his son, William G. Hooper. Stearns v. Matthews, 94 N.H. 435, 438; In re Rose Estate, 95 N.H. 208; Roberts v. Tamworth, supra, 226.
As regards the other half it seems to us the testatrix intended by her will a gift to a class. Campbell v. Clark, 64 N.H. 328, 330; Roberts v. Tamworth, supra. Consequently that half is to be distributed per capita to her nephews and nieces living at her decease (including said William G. Hooper). Campbell v. Clark, supra; Fowler v. Whelan, 83 N.H. 453, 456; Roberts v. Tamworth, supra, 227.
DUNCAN, J., dissented: the others concurred.
This decision in effect overrules the holding of Podrasnik v. Trust Co., 92 N.H. 65, that original jurisdiction to decree distribution is by statute vested solely in the probate court. See also, Rockwell v. Dow, 85 N.H. 58; Barrett v. Cady, 78 N.H. 60, 64. Considerations apart from convenience are involved, which have gone unpresented in this case. Since I am not satisfied that the power of the Superior Court extends to the advice sought, I would hold that the issue should first be presented to the probate court for determination in the exercise of its original jurisdiction. R.L., c. 360, s. 7.