107 A. 339 | N.H. | 1919
The plaintiff, by his attachment of all the real estate of Walter, could not acquire any greater interest than Walter had. Under the will Walter had a vested remainder dependent upon the life estate created by the will subject, however, to be defeated by the exercise of the power of disposition attached to the life estate. Weston v. Society,
If the will had created in mother and daughter in technical terms a joint estate it would be clear that upon the death of the mother the whole estate devised the two was intended for the support of the survivor. If the untechnical language used discloses that the gift was for the support of both during their lives it follows that the testator intended to create such an estate as would effect his declared purpose and as an estate in joint tenancy would have such effect his purpose is carried out by construing the will as creating such estate. Though the testator's statements as to the contents of his will subsequent to its making may not be competent to prove what he meant by what he said, evidence of the circumstances under which the language was used is always competent upon the question what the words used meant to those using them. Stratton v. Stratton,
The clause is not well expressed but if the words mother and sister are substituted for the pronoun their the meaning is clear. It would then read, "I give, devise and bequeath to my mother Sarah D. Blanchard and my sister Flora L. Blanchard all the rest residue and remainder [of my estate] real personal or mixed in equal shares for the support of my mother and sister during the natural lives of my mother and sister with full power to dispose of all or any part thereof if necessary for the support and comfort of my mother and sister." It is clear the property is devoted to the support of the mother and sister during their lives. This purpose would be carried out by a gift in joint tenancy and the purpose as already suggested can be given effect by construing the will as creating such an estate. But if it were to be concluded that since "by usage, and the general understanding of the people, promoted by seventy years' operation of the statute on conveyances and devises of real estate, it is a part of our common law that if an intention to create a joint tenancy is not expressed, legatees are not joint tenants" (Pierce v. Baker,
It is not argued that the omission of the words "of my estate," inserted above, is material. The clause in dispute then continues, "At the death of one or both of them whatever of my estate may remain undisposed of by them I give devise and bequeath it all to my brother Walter E. Blanchard his heirs and assigns forever." When the testator made his will he knew that his mother was eighty-two years of age, over twice the age of his sister, that in all probability his sister would outlive his mother and that she was unable to support herself. *224 Yet if the clause giving the remainder to Walter is intended to limit the estate already given them, upon the death of one the estate of the other is determined and the gift to the mother and sister is not for life but to each for the life of the other. This construction rejects the word "both," for if, as seems to be claimed, on the death of the mother Walter's remainder vests in possession nothing remains to take effect when the sister dies. The language disposing of the remainder is conflicting in itself and upon the construction claimed conflicts with the earlier gift. The apparent purpose of the clause is the disposition of the estate not devised. It is not probable it was intended by its terms to limit the estate already created.
When the terms of a will are in conflict, such construction is given to particular clauses, which appear to be in conflict, as will carry out the purpose of the testator as disclosed by the whole will. Salter v. Philbrick,
Exception sustained: bill dismissed.
All concurred.