Brown v. Philbrick

• Decision Date: 01 October 1918
• Parties: BROWN v. PHILBRICK et al.
• Court: New Hampshire Supreme Court

104 A. 785

BROWN

v. PHILBRICK et al.

Supreme Court of New Hampshire. Rockingham.

Oct. 1, 1918.

Transferred from Superior Court, Rockingham County.

Petition by David Brown, executor, against Annie M. Philbrick and others. Transferred from superior court. Case discharged.

Petition for the construction of the following clause of the will of Sophia T. Gove:

"The remainder of my money * * * I give to Jeremiah Hilliard or his heirs and to the heirs of Ellen. I. Brown to be divided equally among them."

Jeremiah and Ellen were cousins of the testatrix. Ellen died some eight months before the testatrix, leaving five children as her heirs. Jeremiah died after the will was made, leaving two children as his heirs.

H. A. & R. E. Shute, of Exeter, for executor.

Eastman & Scammon, of Exeter, for heirs of Jeremiah.

Peters, Cole, Margison & Barrett, of Haverhill, Mass., for heirs of Ellen.

WALKER, J. The language used by the testatrix indicates a purpose to give one half of the money in question to her cousin Jeremiah, or upon his decease before the death of the testatrix to his heirs, and the other half to the heirs of her cousin Ellen, whose death occurred before the will was made. The phrase, "to be divided equally among them," though not expressed with verbal precision, refers to an equal division between the two classes, consisting on the one hand of Jeremiah and his heirs, and on the other of the heirs of Ellen. The use of the words "or his heirs" are of little importance. The legacy to Jeremiah was intended to be an absolute gift, as was the legacy to Ellen's heirs. If Jeremiah had survived the testatrix, it is not probable her intention would be carried out by a construction which would give one-sixth of the money to him and five-sixths to Ellen's heirs. If such was not her intention, it fol- lows it was not her intention that his two children surviving should only receive two-sevenths of the legacy, while Ellen's five surviving children should receive five-sevenths of it. In the absence of explanatory evidence why the testatrix desired to dispose of her property in that peculiar way, it cannot be found that she had such an intention from language in the will that does not make such a construction necessary, or that is at least open to doubt and conjecture as to its precise meaning. The cases relied upon by Ellen's heirs (Farmer v. Kimball, 46 N. H. 435, 88 Am. Dec. 219; Campbell v. Clark, 64 N. H. 328, 10 Atl. 702; Cuthbert v. Laing, 75 N. H. 304,...