This rule . . . is based upon the presumption that the testator performed the act of revocation with a view and for the purpose of making some other disposition of his property in place of that which was canceled, and that there is, therefore, no reason to suppose that he would have made the change if he had been aware that it would have been wholly futile, but that his wishes with regard to his property, as expressed in his original will, would have remained unchanged . . . . Ruel v. Hardy, 90 N.H. 240, 247, 6 A.2d 753, 759 (1939) (quotation omitted). The doctrine only establishes a rebuttable presumption; it does not apply when there is actual evidence that reveals the testator's intent.

"The failure to devise a gift over of any remainder, while not conclusive evidence, may, in light of all the surrounding circumstances, indicate an intention on the part of the testatrix to devise the entire interest in property. Ruel v. Hardy, 90 N.H. 240 [ 6 A.2d 753]. "Other eminent authorities reach this conclusion.

No question has been raised here with respect to the admissibility of declarations made by the testator. Cf. In re Allen's Will, 88 N.J. Eq. 291, 295 ( Ch. 1917), affirmed 89 N.J. Eq. 208 ( E. A. 1918); Ruel v. Hardy, 90 N.H. 240, 6 A.2d 753, 759 ( Sup. Ct. 1939); 6 Wigmore, Evidence § 1782 (3 d ed.); Warren, supra, 339; Cornish, "Dependent Relative Revocation," 5 So. Cal. L. Rev. 273, 393, 415 (1932); but cf. Sanderson v. Norcross, 242 Mass. 43, 136 N.E. 170, 172 ( Sup. Jud. Ct. 1922). With proof before it as to such surrounding circumstances, the court then, in many cases where there has been a cancellation and an accompanying interlineation, will be pulled in two directions.

New Hampshire has adopted the doctrine of dependent relative revocation, which means that if a will change fails for some technical reason, an otherwise valid effort to revoke fails as well, and the earlier valid will remains in effect. The doctrine "'is based upon the presumption that the testator performed the act of revocation. . . for the purpose of making some other disposition of his property in place of that which was canceled, and that there is, therefore, no reason to suppose that he would have made the change if he had been aware that it would have been wholly futile, but that his wishes with regard to his property, as expressed in his original will, would have remained unchanged. . . .'" Ruel v. Hardy, 90 N.H. 240, 247, 6 A.2d 753, 759 (1939). The rule is only a rebuttable presumption and does not apply "when there is some actual evidence on the question of. . . intention. . . ."

Such a clear legislative directive will be upheld even if the result is to defeat a testator's intent. Packard v. Foster, 95 N.H. 47, 56 A.2d 925 (1948); Ruel v. Hardy, 90 N.H. 240, 6 A.2d 753 (1939); Clark v. Campbell, 82 N.H. 281, 133 A. 166 (1926). [9, 10] The question of the admissibility of extrinsic evidence under the pretermitted heir statutes has been extensively considered in other jurisdictions.

While the 1940 tax bill was properly paid by the executor as a current bill of the estate, title to the real estate passed directly to the devisees subject to their interests being divested due to insufficient personal assets in the estate (RSA 559:1) or insolvency of the estate. McInnes v. Goldthwaite, 96 N.H. 413, 77 A.2d 849 (1951); Ruel v. Hardy, 90 N.H. 240, 6 A.2d 753 (1939); Hatch v. Kelly, 63 N.H. 29 (1884); Perkins v. Perkins, 58 N.H. 405 (1878); Lane v. Thompson, 43 N.H. 326 (1861). In the absence of the necessity of the executor seeking a license to sell the real estate, the probate court has no jurisdiction of the real estate of a decedent.

There may be cases where the will discloses that a gift of the use of property is a direct gift of the property itself. Ruel v. Hardy, 90 N.H. 240, 242; Wilkins v. Miltimore, 95 N.H. 17, 19. But in the present case it is evident that if clause 1 is construed as passing a fee simple interest to the widow, the remaining clauses of the will are ignored. This militates against construing clause 1 in that manner.

See 37 A.L.R. 2d 199. If the residue is insufficient to pay the federal estate tax the balance will be deducted and paid from the single noncharitable general legacy, and if that legacy is insufficient then pro rata from the non-charitable specific legacies. Petition of Cain, 87 N.H. 318; Ruel v. Hardy, 90 N.H. 240; 3 American Law of Property, s. 14.23 (Casner ed. 1952); Annot. 34 A.L.R. 1247. Remanded.

The failure to devise a gift over of any remainder, while not conclusive evidence, may, in light of all the surrounding circumstances, indicate an intention on the part of the testatrix to devise the entire interest in property. Ruel v. Hardy, 90 N.H. 240. Other eminent authorities reach this conclusion.

In giving to his wife the remainder of his estate to use the income for life and the principal if necessary, he made a direct gift to her of the income. Ruel v. Hardy, 90 N.H. 240, 242. Her comfort and happiness and not the unity of his estate, which was to be split up eventually among four nieces and nephews, seems to have been the testator's first concern. If, as was said in Kimball v. Bible Society, supra, 151, relied upon by the plaintiff, "slight evidence may be enough to prove an intention" that unexpended income shall become a part of the principal and unity of the estate be preserved, no reason appears why the converse should not be true. Here such evidence as there is points to a separation of income and principal. The wife was not directed to use the estate as a unit as was the situation in the Kimball case, supra, 140, where she was bequeathed "all my personal and real estate during her natural life, to be used and managed by her as she shall see fit."