Osgood v. Vivada

• Decision Date: 23 December 1946
• Docket Number: No. 3608.,3608.
• Citation: 50 A.2d 227
• Parties: OSGOOD et al. v. VIVADA et al.
• Court: New Hampshire Supreme Court

50 A.2d 227

OSGOOD et al.

v.VIVADA et al.

No. 3608.

Supreme Court of New Hampshire.

Dec. 23, 1946.

Petition by Clinton S. Osgood and another, trustees under the will of William Plummer, deceased, against Albert Vivada and others for instructions as to construction of deceased's will.

Case discharged.

Petition for instructions brought by the trustees under the will of William Plummer, who died in 1862. The clause to be construed is the following:

‘Third. I give and bequeath to the grandchildren of my said sister Deborah the net income of the following described real estate * * *. After paying for repairs and care of said property the ballance [sic] of said income shall be equally divided between said grandchildren or the heirs and at the decease of all of said grandchildren the above property shall be sold and the money thus acruing [sic] be equally divided and paid over to the children of said grandchildren or the heirs. I also give and bequeathe [sic] to the grandchildren of my sister $5000.’

The testator made a specific devise of certain real estate and a bequest of $2000 to this sister Deborah; also a specific bequest of $500 to Maria Martin widow and daughter of said Deborah. There were also two other bequests to other parties, and directions to the administrator as to the handling of certain other real estate.

It is agreed that at the death of the testator there were ten living grandchildren, that no grandchildren were born afterwards, that the last surviving grandchild died in 1940, and that there were then surviving four out of eight great-grandchildren.

The questions submitted in the prayer for instructions in the distribution of the proceeds of said estate are particularly, whether the estate set forth in said clause three of the will, to wit: ‘The money thus accruing be equally divided and paid over to the children of said grandchildren or the heirs' is a vested or contingent remainder; and what descendants of the testator or their heirs, assigns or legatees are entitled under the will to participate in said distribution and in what shares.

Osgood & Osgood, of Manchester, for trustees.

McLane, Davis & Carleton and Stanley M. Brown, all of Manchester (Stanley M. Brown, of Manchester, orally), for four claimants.

Maurice A. Broderick, of Manchester, for four claimants.

Maurice F. Devine and Joseph A. Millimet, both of Manchester (Joseph A. Millimet, of Manchester, orally), for one claimant.

Hamblett & Hamblett and James L. Sullivan, all of Nashua, for one claimant.

Arthur A. Greene, Jr., Samuel A. Margolis, and J. Morton Rosenblum, all of Manchester, filed no briefs.

BURQUE, Justice.

At the outset we wish to say that we have made a careful examination of the photostatic copy of the will, submitted to us by agreement, and we find no basis for the claim advanced by one of the attorneys that the word ‘the’ appearing after ‘and paid over to the children of said grandchildren or the heirs' probably spells ‘ther.’ Wherever the word ‘the’ appears throughout the will we find it written out in the same way; where ‘their’ appears it is spelled out fully, and where the words ‘the heirs' are juxtaposed they are written out in the same way. If perchance the claim should prevail that in the particular instance referred to the word preceding heirs is spelled ‘ther’ this would lend greater support to our interpretation of the words used.

‘The supreme rule in the interpretation of a will is the ascertainment of the testator's intention. * * * It is not necessary that the intention * * * should be expressed in a particular form of words, or by the use of technical terms. It is sufficient if the intention * * * can be gathered from the instrument read in the light of the competent evidence bearing upon its interpretation. Upton v. Hosmer, 70 N.H. 493, 495, 49 A. 96. The testator's intention is the sole subject of inquiry. It is determined as a question of fact by competent evidence, and not by rules of law. Edgerly v. Barker, 66 N.H. 434, 31 A. 900, 28 L.R.A. 328. When ascertained, such intention is to be given effect, with the exception, however, that the intention cannot be followed when it is impossible or illegal to do so, for an intention will not avail to create an illegal or an impossible estate. Burleigh v. Clough, 52 N.H. 267, 271, 13 Am.Rep. 23.’ Hayward v. Spaulding, 75 N.H. 92, 93, 94, 71 A. 219. See Kennard v. Kennard, 63 N.H. 303, 310, and cases cited.

The intention of the testator here seems to us very plain. He sought to and did create two estates-the first for the benefit of the grandchildren of his sister or the heirs, they to receive the income of the real estate so long as there were grandchildren alive. We construe the word ‘the’ to mean ‘their’ heirs, to wit the heirs of the grandchildren. These grandchildren were all living at the time the testator made his will. He knew them and selected them as the objects of his bounty. We need not concern ourselves with the question whether he intended only those grandchildren then living or grandchildren that might be born after his death. There is nothing in the case to indicate there was even any remote possibility of any being born thereafter. All we are required to do is to accept the facts as we find them.

This bequest gave these grandchildren and their heirs a vested interest in the estate created, to wit: enjoyment of the income, a life estate, so long as one grandchild survived.

The second estate he sought to and did create was a remainder, the corpus of the estate to be constituted of the proceeds of the sale of all his real...