Roaf v. Champlin

• Decision Date: 06 May 1919
• Citation: 107 A. 339
• Parties: ROAF v. CHAMPLIN et al.
• Court: New Hampshire Supreme Court

107 A. 339

ROAF

v. CHAMPLIN et al.

Supreme Court of New Hampshire. Carroll.

May 6, 1919.

Exceptions from Superior Court, Carroll County; Marble, Judge.

Bill by one Roaf against one Champlin and others. There was a decree for plaintiff, and defendants excepted. Exceptions sustained, and bill dismissed.

Bill in equity for an injunction and an accounting. The plaintiff claims an interest in certain real estate in Sandwich, conveyed to the defendants by Flora L. Blanchard February 13, 1917, by virtue of a real estate attachment April 17, 1916, in a suit brought by them against Walter E. Blanchard. Flora Blanchard's title is derived from the will of her brother, Howard W. Blanchard. Howard died October 1, 1914, after 5 years' illness. He left a mother, aged 83, who died December 19, 1914, a sister, Flora, aged 40, and a brother, Walter. Howard never married, and lived in Sandwich with his mother and sister. Before his death Flora had had nervous prostration, and was always delicate and never able to earn a living. Neither the mother or sister had any property. Walter lived at Amesbury, Mass., and had not been a member of the family for 30 years.

Howard's property after his death was appraised as follows: Personal property $560; real estate, home place $500, half interest in Trask farm $1,750. The will was drawn by a farmer who had done some probate business. The material portion of the will is:

"First. I order and direct my executor to pay all my just debts and funeral charges and erect a suitable tablet to my grave from my personal estate soon as may be after my decease. Second. I give, devise and bequeath to my mother Sarah D. Blanchard and my sister Flora L. Blanchard all the rest residue and remainder real personal or mixed in equal shares for their support during their natural lives with full power to dispose of all or any part thereof if necessary for their support and comfort. At the death of one or both of them whatever of my estate may remain undisposed of by them I give devise and bequeath it all to my brother Walter E. Blanchard his heirs and assigns forever."

The defendants offered to prove that the testator told his mother and sister after making the will that he had left everything for them as long as they lived, and that his brother would have only what was left after they both passed away. The evidence was excluded subject to exception. The sale to the defendants was for a fair price, and it was necessary that Flora's interest in the real estate be sold for her support and maintenance. Upon the foregoing facts the court found that Walter had at the time of the attachment an attachable interest in the real estate conveyed to the defendants, and entered a decree in favor of the plaintiff. To this finding and decree the defendants excepted.

Walter D. H. Hill, of North Conway, for plaintiff.

Felker & Gunnison, of Rochester, for defendants.

PARSONS, C. J. The plaintiff, by his attachment of all the real estate of Walter, could not acquire any greater interest than Walter had. Under the will Walter had a vested remainder dependent upon the life estate created by the will, subject, however, to be defeated by the exercise of the power of disposition attached to the life estate. Weston v. Society, 77 N. H. 576, 95 Atl. 146; Shapleigh v. Shapleigh, 69 N. H. 577, 44 Atl. 107; Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23.

The tenants of the life estate were given "full power to dispose of all or any part thereof if necessary for their support and comfort." The sale of the real estate in which the plaintiff claims an interest by attachment against the remainderman was necessary for the support of the surviving life tenant, Flora. Her deed disposing of the property defeated the remainder to the extent of her ownership. Barker v. Clark, 72 N. H. 334, 56 Atl. 747. Whether she then owned the whole or a part depends upon the intention of the testator in making the devise. Did he intend to devote so much of the property as was necessary to the support of both of the recipients of this bounty? In technical language are the mother and daughter joint tenants or tenants in common of the estate devised them? The incident of joint tenancy here material is the doctrine of survivorship or jus accrescendi "by which, when two or more persons are seised of a joint estate, of inheritance, for their own lives, or pur autre vie, or are jointly possessed of any chattel interest, the entire tenancy upon the decease of any of them remains to the survivors, and at length to the last survivor; and he shall be entitled to the whole estate, whatever it may be, whether an inheritance of a common freehold only, or even a less estate." 2 Black. Com. *183. The common law favored joint tenancy, and a grant to a plurality of persons, without any restrictive, exclusive, or explanatory words, created a joint tenancy, while to clearly establish a tenancy in common it was necessary to add express words of exclusion as well as description, and to limit the estate to the grantees to hold as tenants in common, and not as joint tenants. 2 Black. Com. *180, *194. Our rule is the reverse of this. A conveyance or devise to two or more persons creates an estate in common, and not one in joint tenancy, unless it is expressed therein that such estate is to be holden by the grantees or devisees as joint tenants or to them and the survivors of them or other words are used clearly expressing an intention to create a Joint tenancy. P. S. c. 137, § 14; Pierce v Baker, 58 N. H. 531. The purpose of the statute is not to forbid or prevent the creation of estates in joint tenancy, but to make certain that effect is given to the intention of the grantor or devisor. The reason of the enactment is stated in the preamble that—

"It often happens that joint tenancies are created against the intentions * * * of testators through ignorance of the proper terms to create estates in common." Act June 21, 1809 (Laws 1830, p. 110).

To create joint tenancies the use of technical terms is not required, but only of "words * * * clearly and manifestly showing it to be the intention * * * that such lands * * *...