Veazey v. Whitehouse

10 N.H. 409 | Superior Court of New Hampshire | 1839

Upham, J.

The will which is submitted in this case for our construction is very untechnically drawn. We think, however, there is no difficulty in determining the manifest intention of the testator.

It is quite clear that he designed bequeathing the larger portion of his property to his son and executor, Levi Veazey. He gives to him all the land of which it appears he died seized, with his farming tools, stock upon the farm, and the buildings on the farm, excepting certain, portions of the buildings, which he reserved for the use of his daughters, the present plaintiffs. The will farther proceeds : “And the said Levi, his heirs and assigns, are to support for said daughters one cow, winter and summer, and they are to have one sixth part of the profit of the orchard, and to have each of them one sheep kept on said farm so long as they, or either of them, shall remain unmarried,”

The question arising on this clause of the will is, whether it is an independent provision, made for the daughters as a mere legacy, for which the executor would be liable solely on his bond, or whether the devise is conditional- — connected with and appurtenant to tire land.

It is clear that the father designed to provide a home for the daughters upon the farm so long as they remained unmarried ; and the provision made for them in other respects would of course be expected to be rendered to them there ; and this is expressly provided, so far as regards the keeping of the sheep.

Without any thing farther to show the intention of the testator, the presumption would be strong that he designed this provision should be connected with and reserved out of the laud devised to the son, and that the provision to each of the devisees should- thus be made alike permanent and certain. But there is this addition to the devise, which would seem to prevent any other construction, which is, .that the son, “ his heirs and assigns,” are holden for the fulfilment of this clause in the will. This, in our view, renders it certain that the devise was designed to be connected with and appurtenant to the estate.

On this subject it is holden, that a covenant to run with the land, and bind the assignee, must respect the thing granted or demised; and the act covenanted to be done, or omitted, must concern the lands or estate conveyed ; and it is said the act in respect to which the covenant is made need not be done on the premises demised. It is sufficient if it be touching or concerning the thing demised, as affecting the value of the reversion, or of the term, or influencing the rent. 17 Wend. 136, Norman vs. Wells.

The provision which is here made for the benefit of the daughters, is clearly of such a nature as may be appurtenant to the land ; and the terms used by the testator in making the devise require that we should give it such a construction. The assignee, therefore, of the land, is holden for the expense claimed by the plaintiffs, as a charge on the estate devised, and judgment will be rendered in the plaintiffs’ favor for the amount of such expense as is agreed upon in the case.

Judgment for the plaintiffs.