Lummus v. Mitchell , 34 N.H. 39 ( 1856 )

Fowler, J.

Ey agreement of parties, the only question for consideration is, whether, by the will of Samuel Ashley, a fee in the lands described in the devise to him passed to Luther Ashley. The words of the devise are, “ I give and bequeath to my son Luther Ashley all my lands in Claremont that lyeth on the west side of the west highway, or public road, running through said town, together with all the buildings and edifices standing on the premises, and also all my stock and farming tools.” The will was made in 1784 and proved in 1792; consequently no aid in .its construction is to be gained from the statute of 1822, reenacted in the Revised Statutes and still in force, providing that words in a will, purporting a devise of lands, shall be held to pass a fee, unless it appear clearly that it was the intention of the testator to pass a less estate.

Nothing is better settled than that, at common law, a devise to one generally of lands and personal estate, without any words of limitation or perpetuity, gives to the devisee an estate for life only in the lands, but the personal property absolutely; unless in respect to the real estate there be a manifest intention to give a fee. Fogg v. Clark & al. 1 N. H. 163; Deacon v. Marsh, Moore 594; Bullock v. Bullock, 8 Viner’s Abr. 238, pl. 10; Kirby v. Holmes, 2 Wilson 80, b; Bowes v. Blackett, Cowper 235; Denn v. Gaskin, Cowper 657; Child v. Wright, 8 Durnford & East 64; Small v. Allen, Do. 497; Compton v. Compton, 9 East 267; Dickins v. Marshall, Croke’s Elizabeth 330; Richards v. Edmunds, 7 Durnford & East 633; Viner v. Eve, 5 Adolphus & Ellis 317; Newton v. Griffith, 1 Harirs & Gill 111; Hawley v. Northampton, 8 Mass. 3; Jackson v. Wells, 9 Johns. 222; Jackson v. Embler, 14 Johns. 198; Wait v. Belding, 24 Pick. 129, 133; Wright v. Denn, 10 Wheaton 204.

But if such intention be manifest, a fee simple estate will pass without words of limitation or perpetuity. Josselyn v. Hutchinson, 21 Maine 340; Godfrey v. Humphrey, 18 Pick. 539; Bradstreet v. Clark, 12 Wend. 602; Baker v. Bridge, 12 Pick. 27; 4 Kent’s Com., (5th ed.,) 5, 6, 7, 536; Sargent v. Towne, 10 Mass. 303.

What, then, was the intention of Samuel Ashley in respect to the lands devised to his son Luther, as gathered from the language of the will itself ? For the devise to Luther Ashley, containing no words of inheritance, must be construed to pass a life estate only in the lands described in it, unless it is apparent from the will itself that the testator intended to give a greater estate.

From a careful examination of the whole will we think there can be no reasonable doubt that the testator intended to pass his whole interest in the lands described in the devise to his son Luther to him. The case finds he owned about six hundred acres of land in Claremont, situate on the easterly side of the highway mentioned in the devise to Luther. After giving to his wife, in the first clause of the will, the use and improvement of one third part of all his real estate in Claremont, Winchester and elsewhere, during the term of her natural life, showing that he had a distinct idea in his mind at the time of the words proper to constitute a life estate, and of the distinction in the phraseology necessary to constitute such an estate and one in fee simple, the testator gives her one third part of all his personal estate forever. In the second and third items he gives a nominal legacy of five shillings to each of his sons Oliver and Samuel, in addition to what they had already severally received from his estate. In the fourth item he gives all his lands in Winchester, with the buildings thereon, to his son Daniel, charging him with respect to the estate devised with the payment of thirty pounds to his daughter Susanna, at his decease, thus clearly giving to Daniel an estate in fee in the lands in Winchester, on the well settled principle that if he took an estate for life only, he might be damnified by the determination of his interest before reimbursed from its income for the expenditure of the thirty pounds’ legacy to Susanna, charged upon his estate. 2 Jarman on Wills 172, and authorities; Doe v. Holmes, 8 Durnford & East 1; Goodlittle v. Madden, 4 East 496; Jackson v. Ball, 10 Johnson 148; McLellan v. Turner, 15 Maine 436; Lithgow v. Kavenah, 9 Mass. 161; Bowers v. Porter, 4 Pick. 198; Wright v. Denn, 10 Wheaton 231; Leavitt v. Wooster, 14 N. H. 562; Bell v. Scammon, 15 N. H. 390. In the fifth item he gives all his lands on the west side of the west highway in Claremont, together with all the buildings and edifices standing on the premises, with all his stock and farming tools, to his son Luther. In the sixth, seventh and eighth items he gives nominal legacies of five shillings to each of his daughters, Tirzah, Thankful and Eunice, in addition to what they had respectively previously received out of his estate. In the ninth item he gives to his daughter Susanna one hundred and fifty pounds out of his real estate in Claremont, not already disposed of. And lastly, he gives to his wife all the remainder of his real and personal estate, chargeable with the before mentioned legacies, and the payment of debts and funeral charges.

Now, it seems to us impossible to believe, from all these provisions of this will, taken together, that the testator did not intend to give to his son Luther an absolute estate of inheritance in the lands devised to him, subject only to the widow’s life estate in one third part thereof. The case finds that the greater portion of the lands devised to Luther were wild and uncultivated, and in these he could have no beneficial interest unless a fee passed. As the devise was intended for his benefit, it could hardly be contended that, as to this portion of the estate, at least, the testator did not intend to pass what alone would give to the devisee some advantage from the devise to him. The devise to Daniel, charging him with the payment of thirty pounds to Susanna, thereby giving him a fee in all the lands in Winchester, the bequest of one hundred and fifty pounds more to Susanna out of lands in Claremont not devised to Luther, the bequest of all the stock and farming tools to Luther, with the lands given him, the similarity of the language employed in the devises to Daniel and Luther; in one case, “ I give and bequeath to my son Daniel Ashley all my lands in Winchester, with the buildings and edifices standing on the samein the othei', “ I give and bequeath to my son Luther Ashley all my lands in Claremont, that lyeth on the west side of the west highway or public road running through said town, together with all the ¡buildings and edifices standing on the premises the devise to the wife of a life estate in one third part of the very lands thus devised to Luther, with a possibility of her survivorship ; the inconsistency of the language employed in the devise to Luther with the idea that thereby was intended to be passed to him only a life estate in two thirds of the lands described, and the possibility of an estate for the residue of his own life in the other third after the decease of his mother, in connection with the circumstance that the greater portion of the lands were then wild and uncultivated, and the charging of the residuary devisee and legatee with the payment of the legacy of one hundred and fifty pounds to Susanna, from the payment of which the lands devised to Luther had been expressly exempted, together with the fact, stated in the case, that the testator at the time of his death owned about six hundred acres of land in Claremont, not disposed of otherwise than by the residuary devise to the wife — all go to satisfy us conclusively that the testator intended to give Luther, whom we infer, from the order in which the children are named in the will, to have been his youngest son, not only his stock and farming tools, but his homestead farm in perpetuity ; subject only to the widow’s life estate in one third part thereof. It is utterly incredible that a father could have intended to turn off the youngest son, ordinarily a favorite with parents, and who is shown in this instance to have been selected to occupy the family mansion and maintain the dignity and reputation of the family at its ancestral seat, with an inconsiderable legacy of stock and tools, and the barren privilege of taking during his life the crops from two thirds of the cultivated portion of the homestead farm.

According to the provisions of the agreed case, there must, therefore, be Judgment on the verdict.