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True v. Cook

Supreme Court of New Hampshire Rockingham
Jul 6, 1948
95 N.H. 198 (N.H. 1948)

Opinion

No. 3744.

Decided July 6, 1948.

Where a condition subsequent, in a devise with no provision for forfeiture or reverter, becomes impossible to fulfill by act of God and without fault of the devisee, the estate then becomes absolute.

BILL IN EQUITY to quiet the title of the plaintiffs to certain real estate located in the town of Fremont, which said premises were owned by the late Emma M. Cook at the time of her death on April 2, 1937. The will of Emma M. Cook contained the following provisions: "First. All my just debts and funeral expenses shall be first fully paid. Second. I give, devise and bequeath all the rest of my estate both real and personal, wherever it may be found or situate, to my husband Henry A. Cook, to have and to hold during his lifetime. Except in case of his second marriage then, all of said property, with the exception of my real estate, shall be divided among my surviving children, or their children. Third. In case of second marriage, or death of my husband, Henry A. Cook, I give all my real estate, including furniture, to my daughter, Lena E. True, with the understanding that she shall live with said Henry A. Cook during his lifetime." The plaintiffs are the heirs-at-law of Lena E. True, while the defendants, together with the plaintiffs, constitute all the heirs-at-law of the said Emma M. Cook. Lena E. True died intestate on the 26th day of February, 1946, and from the second day of April, 1937, until the date of her death, she lived with the said Henry A. Cook, who died intestate the 23rd day of September, 1946. The plaintiffs claim to be the sole owners of the said real estate as the heirs-at-law of Lena E. True. The defendants claim that, as heirs-at-law of Emma M. Cook, they are part owners thereof under the terms of the will of the said Emma M. Cook. The case was transferred without ruling by Wescott, J.

John W. Perkins and Everett P. Holland (Mr. Holland orally), for the plaintiffs.

George R. Scammon and Lindsey R. Brigham (Mr. Brigham orally), for the defendants.


The language of the devise to Lena E. True involves the usual questions of interpretation which are expectable in a home made will. The principal question presented and argued by the parties is what effect shall be given to the following words in the third clause of said will: "with the understanding that she shall live with the said Henry A. Cook during his lifetime." It is the contention of the defendants that these words created a condition precedent and that no estate could vest in Lena E. True until she had lived with Henry A. Cook "during his lifetime." It is also argued by the defendants that the purpose of the third clause of said will was to provide for the comfortable support and maintenance of Henry A. Cook so long as he should live. The inconsistency between these two arguments indicates one of the reasons why the contention of the defendants cannot be adopted. The idea that a provision designed for the support and benefit of Henry A. Cook was so conditioned that it could not take effect until his death, is so incongruous that it must be summarily rejected.

The utmost effect that can be given to the words here involved is that they create a condition subsequent with no provision for forfeiture or reverter in case of a breach attached thereto. By this devise, Lena E. True took a vested estate in remainder in the estate devised, subject to a condition subsequent that she live with Henry A. Cook "during his lifetime." It is plain that the said Lena E. True complied with the terms of the will so far as it was possible for her to do so by living with the said Henry A. Cook until her death, which made a complete compliance with the condition impossible. Under these circumstances the case comes within the principle stated in George v. George, 47 N.H. 27, 45, that where a condition becomes impossible to fulfill "by act of God, and without fault of the grantee or devisee, then the estate . . . becomes absolute." This appears to be the general law. 19 Am. Jur. Title: Estates, s. 82. We, therefore, conclude that the title of the plaintiffs, as heirs-at-law of Lena E. True, became absolute upon her death, and a decree quieting their title to the premises should be entered.

Decree for the plaintiffs.

All concurred.


Summaries of

True v. Cook

Supreme Court of New Hampshire Rockingham
Jul 6, 1948
95 N.H. 198 (N.H. 1948)
Case details for

True v. Cook

Case Details

Full title:ROBERT B. TRUE a. v. ALBERT S. COOK a

Court:Supreme Court of New Hampshire Rockingham

Date published: Jul 6, 1948

Citations

95 N.H. 198 (N.H. 1948)
60 A.2d 138

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