In such a situation the property passes by force of and in accordance with the statute of descent and distribution (RSA ch. 561) and not by virtue of the will of the testatrix. Wells v. Anderson, 69 N.H. 561, 44 A. 103; In re Farwell Estate, 106 N.H. 61, 63, 204 A.2d 239, 241. Hence the takers of these intestate funds are ascertained under that statute and not by interpreting the will which cannot operate on intestate property. Wells v. Anderson, supra; In re Farwell Estate, supra; City Bank Farmers Trust v. Whitten, 137 Conn. 192, 75 A.2d 383.
In other jurisdictions, apparently by the great weight of authority and certainly by the better reasoned decisions, where intestacy or partial intestacy results from the failure, in whole or in part, of a testamentary trust, the property remaining in the hands of the trustee upon termination of the trust passes by force of the statute of descent to the heirs of the testator as of the date of his death, or to those who can trace title through such heirs. ( In re Trust of Wehr (1967) 36 Wis.2d 154 [ 152 N.W.2d 868, 882-884]; In re Kirkpatrick's Will (1963) 39 Misc.2d 133 [240 N.Y.S.2d 342, 346]; In re Astor's Will (1957) 5 Misc.2d 722 [162 N.Y.S.2d 46, 55-56]; Williams v. Ledbetter (1950) 87 Ohio App. 171 [42 Ohio Ops. 391, 94 N.E.2d 377, 382]; Burpee v. Pickard (1947) 94 N.H. 307 [ 52 A.2d 286]; In re Farwell's Estate (1964) 106 N.H. 61 [ 204 A.2d 239, 241]; City Bank Farmers Trust Co. v. Whitten (1950) 137 Conn. 192 [ 75 A.2d 383]; and other cases collected in 27 A.L.R.2d 691 et seq. and 132 A.L.R. 1069 et seq.; see also Bogert, Trusts and Trustees (2d ed.) ยง 469.) The same rule applies even though the will purports to exclude a particular heir who will take by intestacy if the trust fails (i.e. see Burpee v. Pickard, supra, 94 N.H. 307 [ 52 A.2d 286]).
Remick v. Merrill, supra; Hardy v. Gage, 66 N.H. 552; Holmes v. Alexander, 82 N.H. 380; Colony v. Colony, 97 N.H. 386; Watson v. Young, 102 N.H. 436. And see 5 American Law of Property, s. 22.60; 4 Page on Wills (Bowe-Parker Rev.) ss. 35.9, 35.11; Annots. 169 A.L.R. 207, 38 A.L.R. 2d 327. Cf. Kellom v. Beverstock, 100 N.H. 329; In re Farwell Estate, 106 N.H. 61. The probate court is advised that the testator's heirs are to be determined as of the death of Maude E. Davis (Cox) and that the fund should be distributed to Edna D. McIver, and to the four children of Bertha D. Bone who were living on August 8, 1964.