136 A. 266 | N.H. | 1927
The contention of the defendant is that the express authority given the executor to sell real estate is limited (1) to the sale of lots in the platted parcel, known as the "circus lot," and (2) to such sales when the proceeds are to be used solely in improving other lots therein.
This construction is based upon an essential premise that the word "lots," which twice appears, was in each instance used in the restricted sense of town or building lots. As tracts capable of improvement by building are contextually indicated by the use of the word in its second position, and as it appears by evidence aliunde that a plan had been made of the circus ground, and that this was the only tract adapted to building purposes, it is reasoned that, therefore, the testatrix, by the word "lots" in such second position at least, must have had exclusive reference to the platted portions of that tract; and that it is unlikely that the word was used earlier in the same paragraph in a different sense.
The rule that when a word appears more than once in a will, it is presumed to have been used always in the same sense (Hall v. Hall,
Using the words according to their ordinary and popular signification (Perkins v. Mathes,
The defendant's contention that sales are authorized only when the proceeds are to be invested in the improvements of other lots is based upon the claim that the word "and," connecting the provision authorizing sales and that relating to the investment of the proceeds, is used "in its conjunctive sense" and that, therefore, the operations of selling and investing were to be interdependent. An undertaking to coordinate sales and improvements would present such difficulties of administration as to render it improbable that such a restriction on sales was intended unless such an interpretation is a necessary inference. Harris v. Ingalls,
The executor is accordingly advised that the provision in question *506 is a power and not a direction; that under the power he may sell any of the lands devised in the residuary clause, except the homestead, and may invest the proceeds of such sales either in the improvement of other lots by the construction of buildings for tenement purposes; or he may invest in the manner provided by statute. P.L., c. 309, s. 17; c. 290, s. 22. Whether the homestead may be sold under license, under P.L., c. 309, s. 13, is a question not presented and it has not been considered. It is understood that the plaintiff's requests for instruction, and the defendant's exceptions, not covered by this advice, are waived, and they have not been considered.
Case discharged.
All concurred.