Jenkins v. Jenkins

Decision Date16 March 1888
Citation64 N.H. 407,14 A. 557
PartiesJENKINS v. JENKINS.
CourtNew Hampshire Supreme Court

Writ of entry. Facts agreed by the parties. Timothy Jenkins died in 1830, leaving a will which contained this clause: "I also give and bequeath to my son William A. Jenkins all my estate, both real and personal, of every description, not otherwise disposed of; and, if the said William should die leaving no issue, then my will is that it should go to the next surviving brother. The defendant is the widow of William A. Jenkins, who died in June, 1886, never having had issue by her. By his will he gave to the defendant all his estate, real and personal. On the death of William A. Jenkins the plaintiff, David S., became "next surviving brother." About 1855, William A. Jenkins became the father of an illegitimate daughter, which at an early age was taken by him and the defendant to their home, and was brought up by them as a member of their family, and treated as their child until her marriage, about 1882, when she went away to live with her husband. In 1887, upon the joint petition of William A. Jenkins and the defendant, a decree of adoption of this natural daughter was made by the pro bate court of the county of Strafford. The demanded premises are within the operation of the clause of Timothy Jenkins' will above recited.

R. J. Pike, for plaintiff. J. G. Hall, for defendant.

ALLEN, J. The land demanded was a part of the testator's estate devised to Willam A. Jenkins; and, if he should die, leaving no issue, then it should go to the next surviving brother. It was a devise giving William an estate for life, which might become a fee upon his having and at his death leaving issue; and, leaving no issue, the plaintiff, the next surviving brother, would take the fee, by way of executory devise, on a definite failure of issue. Hall v. Chaffee, 14 N. H. 215; Bell v. Scammon, 15 N. H. 381; 2 Washb. Real Prop. (3d Ed.) 635. William died leaving no lawful issue, but leaving an illegitimate daughter, who, at the age of 23, was formally adopted by him as his child. He also left the defendant, his widow, to whom by will he devised and bequeathed all his property, and ever since his death she has been in possession of the land in question, claiming it as part of her husband's estate. By statute, "the word 'issue,' as applied to the descent of estates, shall include all the lawful lineal descendants of the ancestor." Gen. Laws, c. 1, § 19. Giving a construction to the word "issue" according to the statutory definition, it could not be made to include the natural child of William; and he left no issue at his death, within the meaning of the word as used in the will, unless the proceedings for adopting the child constituted her such issue, and the statute under which the adoption was made applies to the case. The statute for the adoption of children (Id. c. 188, § 4) provides that the adopted child shall be, "for the purpose of inheritance by such child, and all other legal consequences and incidents of the natural relations of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock, except that he shall not be capable of taking property expressly limited to the heirs of the body or bodies of the parents by adoption." The property here was not expressly limited to the heirs of the body of William Jenkins, nor to his heirs...

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21 cases
  • In re Holden's Trust
    • United States
    • Minnesota Supreme Court
    • February 23, 1940
    ...the adopted child shall not be capable of taking property expressly limited to the body or bodies of the adopting parents. Jenkins v. Jenkins, 64 N.H. 407, 14 A. 557; 9 Ill. L.Rev. Still others involve wills drawn with reference to statutes, which either did not recognize adoption or did no......
  • In re Holden's Trust
    • United States
    • Minnesota Supreme Court
    • February 23, 1940
    ... ... not be capable of taking property expressly limited to the ... body or bodies of the adopting parents. Jenkins v ... Jenkins, 64 N.H. 407, 14 A. 557; 9 Ill. L.Rev. 149 ...          Still ... others involve wills drawn with reference to statutes, ... ...
  • Bray v. Miles
    • United States
    • Indiana Appellate Court
    • June 30, 1899
    ...person adopted as a possible beneficiary, the decisions generally exclude the adopted child from the benefit of the will." Jenkins v. Jenkins, 64 N.H. 407, 14 A. 557; Morrison v. Sessions, 70 Mich. 297, 38 249, 14 Am. St. 500; Reinders v. Koppelman, 94 Mo. 338, 7 S.W. 288; Schafer v. Eneu, ......
  • In re Book's Will
    • United States
    • New Jersey Supreme Court
    • October 25, 1918
    ...case is in line with the determination in Stout v. Cook. A case in line with Stout v. Cook and Phillips v. McConica is Jenkins v. Jenkins, 64 N. H. 407, 14 Atl. 557. There the testator left a will under which he gave to his son all his estate and, if the said son should die leaving no issue......
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