Campbell v. Clark

• Decision Date: 15 July 1887
• Citation: Campbell v. Clark, 64 N.H. 328, 10 A. 702 (N.H. 1887)
• Parties: CAMPBELL, Ex'r. v. CLARK and others.
• Court: New Hampshire Supreme Court

10 A. 702

64 N.H. 328

CAMPBELL, Ex'r.

v. CLARK and others.¹

Supreme Court of New Hampshire. Rockingham.

July 15, 1887.

Reserved case from Rockingham county; Bingham, Judge, presiding.

Bill in equity by the executor for a construction of Sarah Clark's will.The eighth clause of the will is as follows: "I give and devise the remainder of my estate, real, personal, and mixed, in equal shares, to my nieces and nephews, and to the nieces and nephews of my former husband, John Carr."William Carr, a nephew, and Clarissa Coggswell, a niece of John Carr, died prior to the execution of the will, leaving issue.A niece died after the making of the will, and before the death of the testatrix, leaving a child, Belle A. Williston.Sarah Dickey is a niece, and John and Samuel Campbell are nephews, of the testatrix, and also of John Carr.

The questions raised are: (1) Whether the issue of William Carr and of Clarissa Coggswell take any share in the residue; (2) whether Belle A. Williston takes any share; (3) whether the residue shall be divided per capita among the nieces and nephews of John Carr and of the testatrix, or into two equal shares, of which one shall be distributed among the nieces and nephews of the testatrix, and the other among the nieces and nephews of John Carr; (4) what shares do Sarah Dickey, John Campbell, and Samuel Campbell take in the residue?

G. C. & G. K. Bartlett, for defendantsMilton Abbott and five others.

E. B. Gould,(with whom were Carpenter & McGowan,) for defendantsN. O. Clark and two others.

Wiggin & Fernald, for defendantBelle A. Williston.

The issue of the nephew and niece who died before the making of the will are not entitled to any share in the residue.In re Hotchkiss's Trusts,8 Eq. Cas. 643;Smith v. Pepper,27 Beav. 87;Gray v. Garman,2 Hare, 268.The residue should be divided per capita among the nephews and nieces of John Carr, and the nephews and nieces of the testatrix.Farmer v. Kimball,46 X. H. 435.If a person answers the description of both classes, he is not thereby entitled to a double share.The bequest is not made to classes of persons in the abstract, but to individuals bearing a certain relationship.

Belle A. Williston, one of the nieces of the testatrix, is entitled to take the share her mother would have taken if she had survived the testatrix."The heirs in the descending line of any legatee or devisee deceased before the testator shall take the estate devised or bequeathed in the same manner the legatee or devisee would have taken the same if he had survived."Gen. Laws, c. 193, § 12.The words "legatee" and "devisee" are not used in their narrow and strict sense in this statute.Such a construction would render the statute contradictory and nugatory.It is a remedial statute, and should be liberally construed.Its purpose was to reverse the rule of the common law, and provide that the issue should stand in the place of the parent, unless the testator expressly provided otherwise.The intent of the testator would presumably be the same whether the legatee who died was the sole legatee, or one of several legatees.Hunter v. Cheshire,8 Ch. App. 751;Nutter v. Vickery,64 Me. 490;Minter's Appeal,40 Pa. St. 111;Barnes v. Huson,60 Barb. 598.

CARPENTER, J.A will speaks, not from its date, but from the death of the testator, unless a different intention is expressed.The residue is given to the nieces and nephews as a class.The individuals composing the class are ascertained at the time when the devise takes effect; that is to say, at the testator's death.The gift is to the nieces and nephews in being at that time.Hall v. Smith,61 N. H. 144.This doctrine, like all rules for the interpretation of wills, rests upon the ground that it gives effect to the testator's intention.A gift to a class implies an intention to benefit those who constitute the class when the gift takes effect, and to exclude all others.Barber v. Barber, 3 Mylne &C. 697.There is nothing in the present will from which it can be inferred that such was not the design of the testatrix.

The statute providing that "the heirs in the descending line of any legatee or devisee deceased before the testator shall take the estate devised or bequeathed, in the same manner the legatee or devisee would have taken the same if he had survived,"(Gen. Laws, c. 193, § 12,) has no application.Its purpose was not to defeat the testator's intention, or to change the rules of construction by which the intention is determined, but to provide that if, by reason of a legatee's or devisee's death in the testator's life-time, the gift cannot take effect as intended, it shall go to the lineal descendants of the legatee or devisee, rather than to the testator's heir at law or residuary legatee.It only applies where the intended donee dies before the testator; and where the property, in...