Cuthbert v. Laing , 75 N.H. 304 ( 1909 )

The claim that the grandchildren take but one share in the estate cannot be sustained. The direction of the will is that the property be distributed in equal shares "to my children, . . . and also to my grandchildren," There is no satisfactory evidence that the testator intended the grandchildren to take only the statutory share of their deceased parent. In the provision relating to survivorship he treats all alike. The shares of deceased beneficiaries go to the survivors. If one of the grandchildren had died, its share would have been distributed to all the survivors equally. Had the testator had in mind the statute of distribution, and intended that the two grandchildren should take only their father's share, he would also have provided that in the event of the death of one grandchild its half of its father's share in the estate should go to the other grandchild, to the exclusion of its uncles and aunts.

A will is made to avoid — not to carry into effect — the statute of distribution. If, as the appellees argue, the testator had intended to divide his estate as the statute would cause it to be divided, he could have omitted all of this clause of his will except the provision that the grandchildren's shares should be held in trust. If he had had the suggested familiarity with the statute, it could well be argued that he would not uselessly insert its provisions in the will. There is more ground for arguing that the children constitute a class taking one share, while the grandchildren as a class take the other share, than there is for the contention that the children take as individuals and the grandchildren as a class. But neither construction would carry out the intent expressed in the will. As was said in Farmer v. Kimball, 46 N.H. 435, 440, "any inference of an intention to divide the residue by classes is merely conjectural and quite too uncertain to prevent the application of the well settled general rule; . . . individuals falling within the description of the devisees in the residuary clause take per capita." The persons named and described in the residuary clause all stand alike, and each is entitled to one sixth of the residue of the estate.

Appeal sustained.

All concurred.