Jenkins v. Fowler , 63 N.H. 244 ( 1884 )

The interpretation of a will is the ascertainment of the testator's intention, and the question of intention is ordinarily determined, as a question of fact, by the natural weight of competent evidence. Rice v. Society, 56 N.H. 191, 197, 203; Brown v. Bartlett,58 N.H. 511; Kimball v. Lancaster, 60 N.H. 264, 273.

It is claimed by the heirs that Joseph Fowler died intestate as to the deposits in the savings-banks and the railroad stock. When a person makes a will, he usually intends to dispose of all of his property. This will does not contain, in form, the general residuary clause; but items one, four, and five, considered in connection with the property of the testator, and the fact that all of it, except what is specifically devised, is not enough to satisfy the bequests in items two and three without taking a part of the savings-bank deposits or of the railroad stock, quite clearly indicate that the testator understood and intended that item four with the remainder clauses in items one and five disposed of the residue of his property, and no occasion existed for inserting the ordinary residuary item to make the church in fact his residuary legatee; and we think it manifest, upon the examination of the will itself, that it was the intention of the testator to give the bank deposits and railroad stock to the church. 2 Red. Wills 111 n.; 2 Jarm. Wills 375; In re Miller, 48 Cal. 165 — S.C., 17 Am. R. 422; Hall v. Hall, 27 N.H. 215, 286; Clark v. Atkins, 90 N.C. 629 — S.C., 47 Am. R. 538; Morton v. Perry, 1 Met. 446, 448.

It is true that the case of Mann v. Mann, 1 Johns. Ch. 213, is a strong case favoring the defendants' view of this will, but the will in that case differed from this in at least two essential particulars; — first, it contained a general residuary clause; and second, the testator in it repeatedly used the word "moneys" in a way indicating that he understood its strict technical sense, and nothing in the will shows that he intended to use it in a more extended sense, while the contrary is true of the will in this case.

This conclusion renders it unnecessary to consider the admissibility of the evidence offered by the parties.

Case discharged.

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