48 A. 1085 | N.H. | 1900
In the first sentence of the clause under consideration the testatrix gives the annual income of the residue of her estate to her sister Abigail and her niece Mary H., "and to the survivor of them." This gift is to be executed from year to year during the lives of the legatees and the life of the survivor. The phrase relating to survivorship is properly connected with the preceding part of the sentence by the copulative "and." By virtue of the three following sentences, the remainder is to be paid *439
equal portions to the nieces and nephew named "and the survivors of them," upon the happening of a particular event, namely, the death of Abigail if Mary H. had previously married or died; but if not, upon the marriage or death of Mary H. It would be impracticable to distribute the fund among both the persons named and their survivors. It is evident that "and" was here used in the sense of "or." Such inaccurate use of the word occurs in wills and other instruments. Jarman says: "The word `and' . . . is sometimes construed `or.' This change may be called for . . . by the circumstance that a literal adherence to the testator's language occasions that one member of his apparently copulative sentence is included in and therefore reduced to silence by another." 1 Jar. Wills 455. See, also, Barrett v. Barron,
To what time does the word "survivors" relate — to the time of the death of the testatrix, or that of Mary H.? The English and American cases bearing upon this question were considered in Hill v. Bank,
In O'Brien v. O'Leary,
These cases, and also Hall v. Wiggin,
Mary H. Tompson having died subsequently to the death of Abigail, and never having married, the second of the three provisions for the ultimate division of the remainder applies to the facts as they have developed. It is as follows: "And my will further is, in case my said niece, Mary H. Tompson, should die before marriage and after the death of my said sister, that all said remainder of my estate shall be paid equally to my said nieces and nephew herein above named and [or] the survivors of them." The title of the legatees, as well as their right of possession, depends upon this provision. The natural significance of the language is that those of the persons named who should be living at the death of Mary — the time when the distribution is to be made — are the survivors referred to. The event upon the happening of which payment is to be made is expressed, and the survivorship mentioned obviously relates to it. Upon Mary's death the remainder is to be paid to the persons named or the survivors of them at that time. The meaning is not changed by regarding the words as speaking as of the date of the death of the testatrix. The survivorship cannot be referred to that date without drawing an inference that conflicts to some extent, at least, with the natural meaning of the language used. Besides, if such had been the intention, other words would naturally have been used, as, for example, ample "those who survive me."
By the last sentence of the clause the testatrix provides that, in *441
case her sister should outlive her niece Mary H., the remainder should be paid to the persons named or the survivors of them upon the decease of the sister. No one can doubt that in this case Mary H. was not included in the survivors referred to, although she might outlive the testatrix. Survivorship here clearly relates to the death of the sister — not that of the testatrix. The words expressing it, "the survivors of them," are the same that are used in the other cases. This clear and positive testimony removes all doubt concerning the intention of the testatrix. By the description, "survivors of them," the testatrix intended those of the persons named who outlived the event upon the occurrence of which distribution was to take place, or, as the facts have occurred, the death of Mary H. Such being the intention, it is immaterial whether the interests of the legatees were vested remainders liable to be divested by facts subsequently occurring (Parker v. Ross,
Exception sustained.
BLODGETT, C. J., and YOUNG, J., did not sit: the others concurred.