90 A. 968 | N.H. | 1914
In Pinkham v. Blair,
But, as recognized in Pinkham v. Blair, the fundamental purpose in the construction of a will is to give effect to the testator's intention as expressed by the language he chose to use, found as a fact from competent evidence. This is so firmly established in this jurisdiction that a citation of authorities in its support is superfluous. It follows that former decisions upon the construction of wills are not to be given the force of binding authorities in a given case, unless the language of the will and circumstances are so far identical as not to admit of a reasonable distinction. The language of the will under consideration is not the same as that used in the will considered in Pinkham v. Blair. There the testator said that after the death of his children without issue "my will is that said estate shall go to my next of kin and their heirs and assigns forever." In the present will the testator gave his estate, upon the decease of his wife, "unto my next of kin then living, in equal shares to them and their heirs and assigns forever." The expression "then living" may have an important bearing upon the question whether the testator intended to give his estate to his brothers and sister without limitation or condition, or whether his purpose was to confine the devise exclusively to such of his brothers as should be living at the decease of his wife. In the former case it might reasonably be found *261
that he had in mind the statute, providing that "the heirs in the descending line of a legatee or devisee, deceased before the testator, shall take the estate bequeathed or devised, in the same manner the legatee or devisee would have taken it if he had survived" (P. S., c. 186, s. 12), and that he adopted it as a part of his will, in the absence of evidence of a different intention. In the latter case such a purpose could not be inferred. The object of the statute was "not to defeat the testator's intention, or to change the rules of construction by which the intention is determined, but to provide that if by reason of a legatee's or a devisee's death in the testator's lifetime the gift cannot take effect as intended, it shall go to the lineal descendants of the legatee or devisee, rather than to the testator's heir-at-law or residuary legatee. It only applies where the intended donee dies before the testator, and where the property in that event is not disposed of by the will otherwise than by a residuary clause." Campbell v. Clark,
If Mr. Babb had given his estate after the decease of his wife in terms to his brother and sister living at that time in equal shares, it would not be seriously contended that the children of a brother who died before the testator would take their father's share. But did he mean anything different when he used the words "my next of kin then living, in equal shares"? Did he understand that he was providing for the distribution of his estate in accordance with the statute relating to intestate estates, and that an equal share, not intended for a deceased brother but for a living brother, should nevertheless go to the representatives of the deceased brother? It is clear that when he said "my next of kin then living," or, as he might have said without any change of meaning, "my brothers and sisters then living," he did not mean deceased brothers and sisters and their representatives. He excluded them from the class he sought to benefit. He understood he was disposing of the remainder of his estate by will giving it to a definite class composed of living persons, and not that he was making a useless suggestion that his estate should descend as intestate estate. If he had desired his property to go to his brothers and sister generally and to the representatives of such of them as might survive his wife, he could easily *262 have used language expressing that purpose. He might have given his estate, in the language of the statute, to his "brothers and sisters, or their representatives" (P. S., c. 196, s. 1), or to his next of kin and their representatives. But he did not see fit to use that language, or to indicate that such was his purpose.
Suppose he had examined the statute of distributions (P. S., c. 196, s. 1) in order to ascertain how his property would descend after the death of his wife in the absence of a will. He would have concluded that under the third subdivision of section 1 his "brothers and sisters or their representatives" would take it; and that if this clause was not applicable, it would go to his "next of kin in equal shares" under the fourth subdivision, that is, to his nephews and nieces. But he knew that in ordinary language "next of kin" is used to designate brothers and sisters to the exclusion of nephews and nieces, and that ordinarily his surviving brothers or sisters would be "next of kin" to him. As it is probable the statutory distribution was not satisfactory to him, as he did not desire to leave his property to his nephews and nieces while a brother or sister might be alive, he gave his property to his brothers and sister, as his next of kin, who should be living at the decease of his wife. Giving it to his next of kin then living does not authorize the court to add the phrase by construction, "and to the representatives of such of them as may have died." As he survived his wife, the two brothers living at his decease are entitled to the estate, and the plaintiff is advised that the nephews and nieces take nothing.
Exception sustained.
All concurred. *263