Brown v. Brown

43 N.H. 17 | N.H. | 1861

Bartlett, J.

The devise of the remainder to the defendants was not defeated because Rodney, to whom the life estate was given by the will, did not survive the testator. “ It is well settled that where there is a devise or legacy to two in succession, and it fails as to the first for causes that would, but for the gift over, create a lapse, the next in succession shall take it.” Yeaton v. Roberts, 28 N. H. 468; 4 Com. Dig., Estate by Devise, K; White v. Warner, 3 Doug. 4. The estate given to Rodney was but for his life, and therefore the provision of the Revised Statutes (ch. 156, sec. 11) does not apply; and as the defendants did not take the estate devised to Rodney, they are not bound by the charge or condition affixed to his estate, and the will imposes no charge or condition upon the estate it gives them. See Temple v. Nelson, 4 Met. 584: Therefore, upon the testator’s death, the defendants took a fee in the lands given by the will to Rodney for his life.

The principal question in this case then is, whether the testator by his will gave Rodney a life estate in the north part of lot 92— that part of the lot which he devised to his widow for her life. The defendants claim that he did, because to the words “ my homestead farm,” he adds “it being all the land I own in lots 91 and 92.”. The whole of this will can not take effect literally, for it also contains previous devises of the north part of lot 92 to the widow for life, and of twenty acres in 91 to Caleb in fee, with no intimation that the estates of the widow, of Caleb and of Rodney were not all to take effect in possession upon the testator’s death. If there had been merely devises of the twenty acres in fee to Caleb, and of the same to Rodney for life, the latter would have taken a life estate and the former a fee in remainder. 1 Jarm. 416. If the testator had by his will given the twenty acres in fee to Caleb and had also devised the same to Rodney in fee, each would have taken a moiety. 1 Jarm. 417. Because, in these cases, effect could only be given to both clauses in these modes, they are construed in reference to each other. So it has been held that “ where a testator, after devising his whole estate to A, devises Blackacre to B, the latter devise will be read as an exception out of the first, as if he had said, I give Blackacre to B and subject thereto all my estate, or the residue of my estate to A. Cuthbert v. Lempriere, 3 M. & S. 158. And where a testator gives to B a specific fund or property at the death of A, and in a subsequent clause disposes of the whole of his property to B, the combined effect of the several clauses as to such fund or property is to vest it in A for life and after his decease in BBlamire v. Gildart, 16 Ves. 314 (Sumn. Ed.), and note a. In Hitchcock v., Pardoe, 2 Black. -975, where the testatrix devised to A a farm in the occupation of C, and to B all her lands in L. marsh, and it appeared that part of the farm in the occupation of C consisted of lands in L. marsh, but there was another estate, not in his occupation, consisting entirely of marsh lands in L; it was held that the subsequent devise was not a revocation of the preceding, but that A took the farm and B the marsh land not included in the farm.. So if A having lands in four counties devises those in three counties to his wife in part and in part to others, and afterward devises all to his wife, generally, for the benefit of his son, this shall be extended only to the lands in the fourth county. Com. Dig., Est. by Dev., N, 24. In these cases the different clauses were construed in reference to each other. 1 Jarm. 417-420; 6 Cru. (Greenl. Ed.) 135, n., 149, n.

Upon this principle we think the devise to Rodney must be construed in reference to the devise to the widow, and must be deemed a devise to him of the homestead fai’m, being all the lands owned by the testator in lots 91 and 92, subject to the prior devise, excepting the land given in that. In order to give effect to both clauses, it is not necessary to hold that Rodney would have taken a moiety of the part of 92 devised to the widow. That construction would no more give him all the land the testator owned in 91 and 92 than the one we have adopted, and it would also prevent full effect being given to the explicit devise by metes and bounds to the widow. Indeed this is not claimed by the defendants, and the testator seems to have intended her to take that entire part of 92 as fully as the Fitts pasture. There is not such identity of the lands devised as to lead us to that construction. We can not hold that a life estate was given to Rodney in that part of the lot, to take effect after the widow’s death. The gifts to each are not exactly of the same thing, and if they were,-there is nothing to indicate which should take effect first, as in case of a devise to one in fee, and to another for life, of the same land. In that case there is but one way in which both can be made effectual; but here both would be operative just as well by holding one prior as the other, and in the absence of any thing to show which should have priority, we think such a rule of construction can not be applied. The only other way in which the defendants’ claim can be supported is by rejecting entirely so much of the devise to the widow as gives her land in 92; but we think there is no such incurable repugnancy here as to require the application of this rule of last resort.

Upon an examination of the provisions of the will and the facts in the case, we think the construction, to which we have been led by the authorities, in fact gives effect to the testator’s intention, although that is somewhat obscurely and in artificially expressed. Upon such an examination quite a number of circumstances will be found tending to show this, and it will also appear that the testator did not devise all his real estate, but left one part of the Fitts pasture and the remainder in another part of it undisposed of. The principle of construction we have adopted raises fewer inconsistencies in the will than that contended for by the defendants, as will be seen upon attempting to apply the latter to the devise of twenty acres to Caleb.

It seems to us that upon the authorities no interest in the lands given to the widow was devised to Rodney, and that as the defendants take only the lands devised to Rodney, they have no title under the will to the premises in dispute.

This being the legal construction of the will, there is no latent ambiguity, and parol evidence of the testator’s intention can not be received.

According to the provisions of the case, the decision of the court at the trial term must be set aside, and judgment entered for the plaintiff.