Brierley v. Brierley

• Decision Date: 06 November 1923
• Docket Number: No. 1884.,1884.
• Parties: BRIERLEY v. BRIERLEY et al.
• Court: New Hampshire Supreme Court

124 A. 311

BRIERLEY

v. BRIERLEY et al.

No. 1884.

Supreme Court of New Hampshire. Rockingham.

Nov. 6, 1923.

Transferred from Superior Court, Rockingham County; Allen, Judge.

Petition by Harry G. Brierley against Harriet Brierley and others for sale of lands, in which the parties had different estates. By demurrer defendants raised questions of law Case transferred. Case discharged.

Petition under P. S. c. 243, and alternatively under Laws 1893, c. 19, for the sale of land to which the parties hold title under the terms of a will which provides:

"First. To my son Harry * * * [the plaintiff] I * * * devise * * * my farm in Stratham, including all my real estate in said Stratham, excepting the pine growth on the north side of the road leading to the Squamscott river; to have and to hold for the term of his natural life, and from and after his death I * * * devise the same to my other children [parties defendant] in equal shares, the issue of any child that may then have deceased to take the same share as such child, if then living, would have taken. But to my wife Harriet * * * [also a defendant] I devise and bequeath the use of my dwelling house and furniture for the term of her natural life, together with such use of the windmill and water supply as is reasonably incident to the use of the house; and I also bequeath to her the use of the home garden and home orchard, for and during her lifetime. * * * Third. Upon the death of my wife, I bequeath all my personal estate among my other [i. e., excepting the plaintiff] children, Annie, * * * Ben, * * * Wilfred, * * * and Philip, * * * and the issue of such of them as may have deceased, the issue of any such deceased child to take the same share which the parent would have taken if then living. * * *"

The pine growth stands upon an outlying tract some distance from the other portions of the farm.

The petitioner seeks authority to sell the real estate, subject to the rights of the widow, Harriet, alleging that his interest therein is of small value as compared with his interest in the value as computed by the actuaries' tables. The defendants deny this, and say that such a sale would be inequitable and injurious to their interests, and contrary to the intent of the testator. By demurrer the defendants raise the following questions of law which are transferred as of legal importance by Allen, J., without ruling, to wit:

"(1) May the plaintiff maintain the proceedings as a petition for partition? (2) May he maintain it as a proceeding under Laws 1893, c. 19? (3) If he may proceed under either 1 or 2, has he any interest in the land on which the pine growth stands? * * * (5) In the event of a sale is the plaintiff to receive from the proceeds the present value of his interest as computed by actuaries' tables, or are the proceeds to be held by a trustee, paying the net income to the plaintiff for life and the principal upon his decease to the persons then entitled as remaindermen?"

Scammon & Gardner, of Exeter, for plaintiff.

Arthur O. Fuller, of Exeter, and Dwight Hall, of Dover (Arthur O. Fuller, of Exeter, of counsel), for defendants.

SNOW, J. The petitioner, subject to the widow's interest, took an estate for his life in the testator's farm except the "pine growth." The other defendants took a vested remainder in all the real estate; their estate in the pine growth to take effect in possession upon the death of the widow, and their estate in the rest of the farm to take effect in possession upon Harry's death, subject to the widow's rights if she survived him. The testamentary provisions, for the purposes of this ease, present the characteristic instance of an estate for life with remainder over. There is no suggestion of a trust. The primary questions presented, therefore, are whether under P. S. c. 243, as amended by Laws 1913, c. 21, or under Laws of 1893, c. 19, a petition by a tenant for life lies (1) for the sale in fee of the res covered thereby, and (2) for the distribution of the proceeds between the life tenant and the remaindermen.

Prior to 1893 there was no statutory provision in this state for the compulsory sale in fee of the res in such a case, upon petition of either the tenant or remainderman. P. S. c. 243, providing for the partition of real estate held in possession in reversion or as a vested remainder, contemplated partition only as between those holding with others estates of the same class or duration, and not as between the holder of a particular; estate on the one hand and the holder of the reversion or remainder on the other hand. Brown v. Brown, 8 N. H. 93, 95.

The Legislature by Laws 1893, c. 19, § 1, provided:

"When real estate is subject to a contingent or vested remainder, executory devise or power of appointment, the Supreme Court for the county in which said real estate is situated may, upon petition of any person who has an estate in possession, remainder or reversion in such real estate, and after notice and other proceedings as hereinafter provided and required, appoint one or more trustees, and authorize him or them to sell and convey such estate, or any part thereof, in fee simple, if such sale and conveyance appear to the court to be necessary or expedient; and such conveyance shall be valid and binding upon all parties."

Section 2 provides for notice to or representation of all persons "who are or may become" interested, whether then in being or not, while section 3 requires that the trustee give bond, and that he shall "receive and bold, invest or apply, the proceeds of any sale made by him for the benefit of the persons who would have been entitled to the real estate if such sale had not been made," and places the administration of the trust thus created under the jurisdiction of the probate court for the county in which the real estate was situated. The power of the Legislature to enact such a law is...