Moore v. Moore

• Citation: 69 N.H. 420,45 A. 233
• Court: Supreme Court of New Hampshire
• Decision Date: 17 March 1899
• Parties: MOORE v. MOORE et al.

45 A. 233

69 N.H. 420

MOORE

v. MOORE et al.

Supreme Court of New Hampshire. Belknap.

March 17, 1899.

Writ of entry by George F. Moore against Joseph C. Moore and another. Judgment for defendants.

Writ of entry. Facts agreed: David F. Moore died testate in 1888, leaving a homestead place in Laconia, and, surviving him, a widow and four children, of whom the plaintiff and defendant Joseph C. are two. By his will, which has been duly allowed, he gave to each of the children, except Joseph C., $5, and to his widow his household furniture and provisions, and the use and income of one undivided half of his homestead. —the latter during her life, or so long as she should remain unmarried. He also ordered and directed that his widow should "be furnished and provided with a good and comfortable support and maintenance" from his estate, and that a good horse and carriage should be kept for her use, without expense to her. He gave the residue of his estate to the defendant Joseph C, and his heirs and assigns, "but upon the express provision that he shall pay the before mentioned legacies, and carry out, or shall give proper bonds for the carrying out, the provisions hereinbefore written for the support" of his widow. He appointed Joseph C. executor of the will. The widow died in 1894. The defendant Jones is in possession of the homestead place as assignee of Joseph C, an insolvent debtor. The plaintiff seeks to recover one undivided fourth part of the place on the ground that it has descended to him as an heir at law of David P., because Joseph C. never paid the legacies named in the will, and never gave proper bonds for carrying out the provisions of the will in respect to the support of David F.'s widow. The defendant Jones is ready to pay the legacies, if necessary to protect his right to the demanded premises.

Walter S. Peaslee, for plaintiff.

Stone & Shannon and Edwin F. Jones, for defendants.

BLODGETT, C. J. For the purposes of this inquiry, it is immaterial whether Joseph C. gave proper bond for the support and maintenance of the widow of David F. If he carried out the provisions for her support prescribed by the will, no bond was required of him by its express terms; and, if he failed to carry out those provisions, the right to take advantage of the failure was personal to her, and terminated with her decease.

Assuming that the plaintiff's $5 legacy has not been paid, and that it is not a mere charge upon the land devised to Joseph C, the remaining question is, did its nonpayment by Joseph C. constitute a breach of the condition subsequent attached to his estate, so as to work a forfeiture of which the plaintiff can avail himself? Upon the evidence before us, we regard it as plain that the question must be answered in the negative. The mere fact that the legacy has not been paid does not of itself establish a forfeiture....