59 N.H. 135 | N.H. | 1879
A devise is never construed absolutely void for uncertainty, but from necessity. If it be possible to reduce it to a certainty, the devise is good. Powell on Devises 421. A devise is held to be void for uncertainty only when, after a resort to competent oral proof, it still remains matter of mere conjecture what was intended by the instrument. Society v. Hatch,
In the present case there is no ambiguity appearing upon the face of the will. The intention of the testator is clearly expressed, that the remainder, after the termination of the life estate of Amos Harriman and his wife, should go to such person or persons as should take care of and support Amos and his wife in their old age, giving the preference to John Harriman, Jr., the defendant. The devise was to take effect, not at the death of the testator, but upon the termination of the life estate of Amos Harriman and his wife; and it was then to be determined who was entitled to the fee in the lands. This question is to be determined upon evidence. It is a question of identity. If no person has complied with the conditions of the will, the devise fails for want of a devisee. If it appears that the defendant, John Harriman, Jr., has complied with its conditions, then he is entitled to hold the lands under the will. If he has failed to do so, and the plaintiff has performed the conditions, then be is entitled to recover. Whether the devise shall fail for want of a suitable person to take it, *137 depends upon the evidence that may appear in the case. The court cannot say, as matter of law, that the devise is void for uncertainty.
Case discharged.
STANLEY, J., did not sit: the others concurred.