Parker v. Ross

• Decision Date: 11 March 1898
• Citation: 46 A. 576,69 N.H. 213
• Parties: PARKER v. ROSS et al.
• Court: New Hampshire Supreme Court

46 A. 576

69 N.H. 213

PARKER

v. ROSS et al.

Supreme Court of New Hampshire. Strafford.

March 11, 1898.

Bill by Henry R. Parker, administrator of Richard N. Ross, deceased, against Dorcas W. Ross and others, for the construction of a will. Case discharged.

Bill in equity for the construction of the will of Richard N. Ross, of whose estate the plaintiff is administrator with the will annexed. The will is as follows: "(1) I give and devise unto my beloved wife, Dorcas W. Ross, all the property I possess, * * * for her support and maintenance as long as she lives. At her decease the remainder thereof * * * shall be divided into four equal parts, and given as follows: (2) I give and devise one-fourth part to my sister Sarah A. Dutton. (3) I give and devise one-fourth part to the children then living of my deceased sister Mary Ewell. (4) I give and devise one-fourth part to the children then living of my deceased sister Harriet P. Smith. (5) I give and devise one-fourth part to the children then living of my deceased sister Margaret J. Rennie. If there should not be any of the children of either of my deceased sisters living, their portion shall be divided equally among the other legatees." The testator's widow, his sister Sarah, and a child of each of the three deceased sisters are living. Dorcas waived the provisions of the will, and took, under the statute, one-half of the estate. The estate consists of both real and personal property. The questions upon which the plaintiff is in doubt and submits to the court are: (1) Whether the remainder to the children of the deceased sisters is vested or contingent; and (2) whether their legacies are due and payable now, or not until the decease of Dorcas.

Hall & Hall, for plaintiff. F. E. Carpenter, for defendants.

CARPENTER, C. J.A remainder contingent in terms will be held vested if such was the intention of the testator. Wiggin v. Perkins, 64 N. H. 36, 5 Atl. 904. Thus, under a devise to the testator's wife for life, if she shall so long continue to be his widow, and, in case she marries, to A. in fee, A. takes a vested remainder. Fearne, Rem. 5, Butler's note d; Brown v. Cutter, T. Raym. 427; Bates v. Webb, 8 Mass. 458; Kenuard v. Kennard, 63 N. H. 303, 309, 310. So, under a devise to A. for life, remainder to her children, if any she has, and, if she has none, to B., B. takes a vested remainder, subject to be devested by the birth of a child to A. Vandewalker v. Rollins, 63 N. H. 460, 3 Atl. 625; Cole v. Society, 64 N. H. 445, 457, 458, 14 Atl. 73. The will in this case is, in effect the same as if it read as follows: "I give one-fourth to the children living at Dorcas' decease of each of my three deceased sisters, and, if no children of any one of them shall be then living, I give their portion to the other legatees." Under a devise expressed in similar terms it has been held in numerous cases that the children take a vested remainder, liable to be devested by their death prior to the death of the life tenant. Hawk. Wills, 240-242; Williams, Ex'rs, 1246-1248; Doe v. Nowell, 1 Maule & S. 327; Bromfleld v. Crowder, 1 Bos. & P. N. R. 313; Doe v. Moore, 14 East, 601; Phipps v. Ackers, 9 Clark & F. 583; Doe v. Ward, 9 Adol. & E. 582; Doe v. Hopklnson, 5 Q. B. 223; Finch v. Lane, L. R. 10 Eq. 501; Andrew v. Andrew, 1 Ch. Div. 410; Roome v. Phillips, 24 N. Y. 463; Farnam v. Farnam, 53 Conn. 261, 2 Atl. 325, and 5 Atl. 682; Nodine v. Greenfield, 7 Paige, 544; Williamson v. Field's Ex'rs, 2 Sandf. Ch. 533. "Where a remainder is so limited as to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event which must unavoidably happen by efflux of time, the remainder tests in Interest as soon as the remainderman is in esse and ascertained; provided, nothing but his own death before the determination of the particular estate will prevent such remainder from vesting in possession. Yet, if the estate is limited over to another in the event of the death of the first remainder-man before the determination of the particular estate, his vested estate will be subject to be devested by that event, and the interest of the substituted remainderman, which was before either an executory devise or a contingent remainder, will, if he is in...