Kimball v. Penhallow , 60 N.H. 448 ( 1881 )

1. The limitation in that clause of the will which gives to the defendants $2,000 each, and "in event of either the four dying without issue, his or her share to go to the survivors in equal parts," c., is not void for remoteness. "Dying without issue" means without issue at the death of the legatee. Downing v. Wherrin, 19 N.H. 9; Hall v. Chaffee,14 N.H. 215; Pinkham v. Blair, 57 N.H. 226.

2. The word "issue" means child, grandchild, or other lineal descendant.

3. Upon the birth of a child or children, the defendants severally will not acquire a vested interest in the legacy to him or her. The meaning is, dying without issue living at his or her decease.

4. If either of the legatees shall die without issue, his or her share will vest in the survivors free from the original limitation. If A shall die before B, C, and D, leaving issue, his share would go to his legal representatives. If B shall next die without issue, his share would go to C and D, and A's heirs would take nothing in B's share. The children cannot be called a survivor. The heirs do not take as purchasers, but as heirs. All that the heirs can take is the share of their parent, and there would no longer be a share belonging to such parent.

5. We think the legatees may waive the limitation imposed by the will in his or her favor. The heirs of the legatees, taking as heirs and not as purchasers, have no vested interest in the bequest. If the legatees agree to ware the limitation imposed in their favor, we see no objection to their all joining in a full discharge and release to the executors for the legacy, expressly stating what they do with the fund, and making a present disposition of it. If the testatrix had intended to prevent such disposition by the legatees she could have expressed such intention in various forms, with or without the intervention of a trustee. Joint tenants of real estate may destroy the joint tenancy by conveyances (1 Wn. R. P. 411); and there is no reason why the modified joint tenancy created in this bequest of $8000 may not be terminated by mutual releases from the legatees. The will creates a modified joint tenancy in the four legatees in the sum of $8000 during their joint lives, the right of survivorship being liable to be defeated by the legatees dying with issue living at his or her death. There is no rule that deprives these words of their literal meaning. The essential element necessary to create a joint tenancy — the jus accrescendi — is found in this bequest, modified only by the contingency of either of the legatees dying with issue.

It being a joint tenancy for life, the legatees are entitled to receive each the legacy of $2000, and to enjoy the income for life, upon giving security to the executors for the benefit of the other legatees, that the principal shall be preserved unimpaired for the survivors, in case he or she shall die without issue; otherwise, a trustee must be appointed to take the fund, paying the income to the legatees during their lives, and the sum of $2000 to the survivors if either shall die without issue, or to his legal representatives if he shall die leaving issue.

Case discharged.

CLARK, J., did not sit: the others concurred.