Opinion
Decided December, 1895.
In a devise to T, by his father's brother, of land long owned by the family, "to have and to hold as his own; then to his heirs, if any, if not to his nearest akin by the name of" T, "or his nearest akin on the father's side," T does not take a fee-simple estate and has no power to dispose of the land by will.
PETITION, for partition. Facts agreed. Simon Towle and David Towle, now deceased, were brothers, and previous to 1840 they owned the real estate in controversy in common. Simon died in that year, intestate, leaving four children, one of whom, an infant, died soon after, and Mary E. Miller, another child, died intestate in 1877, leaving two children, who are the plaintiffs. Georgianna Margerum was another child who died intestate in 1878, leaving no issue. Simon P. Towle, the other child, died in 1890 without issue. The plaintiffs claim to own one half of their grandfather's half of the land, or one fourth of the whole, and also the half owned by David Towle, under the residuary clause in his will. He died in May, 1867. The clause of the will referred to is as follows: "Also I give my nephew, Simon P. Towle, all my real estate and personal property that can be found, to have and to hold as his own. Then to his heirs if any, if not, to his nearest akin by the name of Towle, or his nearest akin on the father's side." The defendant Lamprey claims title to three fourths of the whole estate under the will of Simon P. Towle.
Calvin Page, for the plaintiffs.
Marvin, Thomas E. O. Marvin, and Lamprey Shea, for Lamprey.
Simon P. Towle left no "heirs" within the meaning of that word as used in the will of David. The expression, "his heirs," was not intended as a description of the estate devised to Simon P. If the testator had intended to devise to him a fee-simple title, or an estate that should vest in him, his heirs and assigns forever, no reason is apparent for the provision that in case of the death of Simon P. without heirs, the estate should pass "to his nearest akin by the name of Towle, or his nearest akin on the father's side." It is not to be presumed that no meaning was intended to be conveyed by these words. Sanborn v. Sanborn, 62 N.H. 631. All the competent evidence shows that the testator's general purpose was to so dispose of the land that it should remain in the Towle family; and to accomplish that purpose, he in effect provided that upon the death of his nephew without lineal descendants, it should become the property of the nearest of kin to the nephew by the name of Towle or "on the father's side." A construction that would allow Simon P. to dispose of the land by will would contravene the plain intention expressed by David in his will. Upon the reported facts, the plaintiffs are the owners of one fourth of the entire estate by inheritance, and under the will of David they became the owners of an additional half of it. The will of Simon P., therefore, could operate only on the remaining one fourth which he inherited from his uncle, his sister Georgianna, and the infant.
Judgment for the plaintiffs.
WALLACE, J., did not sit: the others concurred.