Dennett v. Kirk , 59 N.H. 10 ( 1879 )

Is the will, inoperative as a bequest of a fund which was not the property of the testator, an order for the payment of the fund to Oliver's mother, within the meaning of the rules of the association? It is a writing signed by the member and a sufficient number of witnesses. It distinctly refers to the fund as the subject-matter of his power of appointment. 4 Kent 334; Burleigh v. Clough, 52 N.H. 267, 280. "Whatsoever sum may be due me or my executor from the Odd Fellows' Mutual Relief Association of the county of Strafford, as a member thereof," is an inaccurate but unmistakable and sufficient designation of the fund which was not and would not be due to the member or his executor. The erroneous description points out the fund with absolute certainty. The will is not addressed to the association, and the part relating to this subject is not a formal order for the payment of the relief either by anybody or to anybody. But it clearly expresses Oliver's desire and direction that it should be paid to his mother. It plainly manifests his intention to so comply with the rules of the association as to exercise his power of selection in her favor. By the formal bequest, he expressly informed all to whom knowledge of it should come that the relief was to be paid to her. He named her as the person entitled to a certain fund that was, in fact, payable to his appointee (with or without certain limitations) at his death. He described the fund as being in the hands of a certain accurately described association. He effectually declared, in a writing signed by himself and more than two witnesses, that his mother should be the payee of that fund, of which nobody but the association could be the payer. A written statement, that a certain thing will be done at a certain time, when made known to the only person who can do it, may be an imperative order that he shall do it. A deed of land to A, upon condition that B is to take the possession and income of the land during his life, is a conveyance of a life interest to B without any words of formal grant to him. Currier v. Janvrin, 58 N.H. 374. In this case the testamentary language, literally signifying a bequest to the testator's mother of certain money in the hands of a certain association, means that the association is ordered to pay the money to her. That meaning could have been expressed in the more common phraseology of command, but the formal bequest is, in legal construction and effect, an order within the meaning of the rules of the association. The relief was not payable by the treasurer to the widow as the first of the list of payees, because the treasurer was "otherwise ordered" in a manner allowed by the rules, which contain the controlling stipulations of the original contract of Oliver and the association.

Case discharged.

BINGHAM, J., did not sit: the others concurred.