Towle v. Berry , 44 N.H. 569 ( 1860 )

Nesmith, J.

We think the facts, as proved and admitted in this case, show with sufficient clearness the existence of a resulting trust enuring to the benefit of the husband, Darius Towle. The premises being shown to have been purchased with the husband’s money, therefore the trust can not enure to the benefit of the wife. Scoby v. Blanchard, 3 N. H. 170; Page v. Page, 8 N. H. 187.

The estate having vested in said Darius, he being shown to have died without issue, under our statute regulating the descent of real estate the widow of said Darius inherits one undivided half of said premises in her own right forever. The other undivided half is subject to the application of the statute law regulating the homestead exemption, and the right of dower in behalf of the widow of said Dai’ius, the reversion to enure to the legal heirs of Darius.

The plaintiff may have leave to amend her bill, to conform to the principles of this decision.

The bill having been duly amended, the court made a decree appointing a committee, with full power to set off and assign to Sarah Towle her distributive share in said premises mentioned, being one half of the same, in fee forever; secondly, her homestead rights in the other half of said premises, agreeably to the statute in such cases made and provided: Ordered that said committee cause the parties in interest to be duly notified of the time and place assigned by them to execute their said trust, and make due report of their doings to this court at their next law term in this district, and the court also decreed that the said minors and their said guardian be enjoined from enforcing the judgment obtained before the justice of the peace against the complainant.