Thyng v. Lane , 69 N.H. 403 ( 1898 )

A consideration of the will as a whole leaves the impression that the general plan of the testator was to set apart portion of his property for the benefit of each one of his children and the child's issue, with certain limitations upon its use; or, in other words, to give a portion of the property to the children of each child (his grandchildren) and the legal representatives of such as should die, subject to the right of their parents to have the use of it during life. The words looking to the future, — "after the death of the said . . . and the death or marriage of his widow," — apparently relate to the time when possession of the property was to be taken instead of the time when the right to the property was to arise. If this be so, the grandchildren's interests became vested upon the death of the testator. Brown v. Brown, 44 N.H. 281; Kennard v. Kennard,63 N.H. 303, 309; Wiggin v. Perkins, 64 N.H. 36; Hall v. Wiggin,67 N.H. 89, 91.

A consideration of particular provisions of the will strengthens this impression. The portions of the personal property specifically bequeathed to the children and grandchildren were placed in the possession of trustees, who were to pay the income to those having the life interests during their lives, and "after the death of said legatees for life to pay the principal to their children as hereinbefore provided." This tends to show an intention that the grandchildren's interests should vest upon the testator's death, although they were not to have the principal of the trust funds until after the death of the legatees for life. Similar forms were used to express a like purpose in Crosby v. Crosby, 64 N.H. 77, and Benton v. Benton, 66 N.H. 169.

The words of limitation used in the devises of real estate to Elizabeth and Charles are apt words to convey life interests to them and vested remainders to their children and the representatives of deceased children. In the case of Charles, it is provided that his children are "to come into possession of said premises after the termination of the estates herein bequeathed to the said Charles and his widow," — clearly implying that the rights of the children came into being previously and were unconditional. If the intention had been to have the right in the property and the right to its possession arise at the same time and depend upon the same conditions, the matter of possession would not have been singled out and made the subject of a special provision. The uniformity in the form of expression adopted for devising both real and personal estate shows that the intention was the same in respect to both. In fact, in the case of Elizabeth, the testator joins real and personal property in one devise, applying his language to both kinds of property indiscriminately.

It is argued that the fact that the testator expressly limited the interest of William's widow to her life shows that he did not intend she should have a greater interest under any circumstances. It is true that he did not intend she should acquire a greater interest directly from him, but he did not undertake to interfere with the operation of the laws of descent upon the property after it had vested. Upon the death of Eugenia, Abby became the owner of the six thousand dollars, not by virtue of any bequest directly to her, but by descent from Eugenia, to whom it was given by the will.

Case discharged.

WALLACE and YOUNG, JJ., did not sit: the others concurred.