Fisk v. Call , 77 N.H. 185 ( 1914 )

The defendant claims that the conclusion reached in the superior court was erroneous because the vote of the town under article 11 of the warrant was a complete renunciation of the benefit conferred by the will of Phineas Pettingill; that thereafter the town had no interest in his estate, and therefore nothing which it could convey to Watson Pettingill by its vote under article 12. This argument is based upon the assumption that the two votes are so distinct and separate that each is to be interpreted without reference to the other.

In Burbank v. School District, 73 N.H. 540, the town of Pembroke voted to contract with Pembroke Academy to furnish high school instruction to the scholars of the town. It then voted to continue to pay the tuition of pupils then attending the Concord high school. It was held that the two votes should be construed together; that it could not be said that the first vote would have been passed, or allowed to stand, except for the second one. The same principle applies in the present case. It is very evident that the town understood that the sum of its action upon the subject of the Pettingill farm was expressed in the two votes. These votes are to be given a liberal construction, as distinguished from technical one. New London v. Davis, 73 N.H. 72, 77. So construed, there is no reasonable doubt of the purpose the town had in view. It intended to convey its interest in the estate to Watson Pettingill.

Under a strict construction, the vote not to accept the legacy might be held to be a renunciation of the devise, or it might not be. There was no "legacy" left to the town; and if strict construction were to be resorted to, it should be followed throughout. The result of such a course would be that the first vote did not affect the devise, and that the property willed to the town would pass under its proper designation in the second vote. The town's "interest in the estate" is a correct description of what it took under the will. But no such technical rule is to be applied in ascertaining the intention sought to be expressed. The reasonable meaning of the two votes, when read together, is that the town intended to confer a benefit upon Watson Pettingill, rather than upon the collateral heirs of Phineas Pettingill. The meaning being evident, it is unimportant that it is inartificially expressed, that upon a strict construction the meaning would not be expressed at all. Brackett v. McIntire, 72 N.H. 67.

The claim that the devise created a trust, so that the town could not convey the title to the property, is also set up as a defence. But the devise contains no specific restraint upon alienation. Granting that a trust was created which the town could not defeat, it does not follow that it could not convey the property. If the conveyance were for an insufficient consideration, or voidable for some other reason, the beneficiaries might object to the transaction; but as against third parties, the title would be so far transferred that the grantee could maintain a writ of entry. Wiggin v. Berry, 22 N.H. 114.

Exception overruled.

All concurred.