Cotter v. Cotter , 103 N.H. 551 ( 1961 )

Kenison, C. J.

The devise to Edward M. Cotter of “my real estate located at 120 Pearl Street” is a common example of devises by popular name without any attempt at formal description. 4 Bowe-Parker (Rev. ed.) Page on Wills, s. 33.19 (1961). Such devises are generally sustained as valid and are considered as constituting a gift of the buildings and of the land used in connection therewith. Cowan v. Cowan, 90 N. H. 198; Marston v. Stickney, 58 N. H. 609. The fact that the testator referred to the residences at 118 and 120 Pearl Street as real estate and in exactly the same language indicates beyond any doubt that he intended to devise a reasonable amount of land with access therefrom to Pearl Street, and that he did not intend in the case of the devise of 120 Pearl Street only a building subject to removal. This is the usual sense in which the words would be used (RSA 21:21) and in the context of the will as a whole there is no reason to believe that the testator intended that one of the devisees should be without the benefit of land or access particularly in view of the past use of these premises. Annot. 12 A. L. R. 1179.

It is the plaintiffs’ contention that the alternative remainder interest devised to Edward M. Cotter of the real estate located at 118 Pearl Street should pass as intestate property. If the first clause of the will is taken by itself, there is validity in this argument. That clause reads as follows: “FIRST: I give and devise to my son, Roger F. Cotter of Keene, New Hampshire, my real estate located at 118 Pearl Street, Keene, New Hampshire, to have and to hold during the term of his natural life. On the death of my son Roger, I give and devise said real estate in fee simple to my daughter, Agnes C. Meloon, of Keene, New Hampshire, if she survives him. Should my daughter, Agnes C. Meloon, predecease my son Roger, I then give and devise said real estate in fee simple to my son, Edward M. Cotter, of Keene, New Hampshire.” By this clause alone the daughter, Agnes C. Meloon, would have a remainder interest subject to defeasance if she fails to survive Roger F. Cotter.

Since Edward predeceased Roger the question arises whether the testator intended that Edward should take only in the event that he survived Roger. If he so intended this would create intestacy in the event Agnes also predeceased Roger unless the property passed under the residuary clause of the will. However Agnes under the ninth clause of the will is the residuary beneficiary of both realty and personal property. The residuary clause is not conclusive against partial intestacy but supports the position that it was not intended by the testator. West v. Chase, 92 N. H. 104; Merchants &c. Bank v. Berry, 93 N. H. 388; Kemp v. Dowling, 94 N. H. 198.

It is true in several cases where the court has failed to find a partial intestacy in a testamentary disposition that the wills have been elaborate or detailed. Roberts v. Tamworth, 96 N. H. 223; Jacobs v. Bean, 99 N. H. 239. This does not mean that partial intestacy may not be avoided in the simple will with a general residuary clause which may be terse in style and laconic in nature. Cowan v. Cowan, 90 N. H. 198, 199; In re Lathrop Estate, 100 N. H. 393. The will construed as a whole contains no reasonable indication that any part of the estate should pass as intestate property. 4 Bowe-Parker (Rev. ed.) Page on Wills, s. 30.14 (1961). Upon the stipulations and record in this case Agnes C. Meloon has a vested remainder in the premises at 118 Pearl Street regardless of whether she survives Roger.

Remanded.

Duncan, J., dissented in part; the others concurred.