Brewster v. Mack

Parsons, J. If the will gave to the Eddie child who died before the testator one tenth of the estate to such child as an individual, then the legacy lapsed, there being no heirs in the descending line. P. S., c. 186, s. 12; Goodwin v. Colby, 64 N. H. 401. If, however, the gift to the Eddie grandchildren was to them as a class of one fifth of the estate, then only the survivors of the class take, and the Eddie child surviving the testator became entitled to the whole fifth share. Campbell v. Clark, 64 N. H. 328, 330; Hall v. Smith, 61 N. H. 144; Swallow v. Swallow, 166 Mass. 241. In the latter view, the whole ■estate is disposed of by the will; in the former, the testator died intestate as to one tenth of his estate. The question is, what did the testator intend ? Swallow v. Swallow, supra. “ Though the bequest be to individuals by name, yet if it appears upon the whole will that the testator considered them as constituting a class, and intended that the whole should go to the survivors, that intention will prevail.” Hall v. Smith, supra, 146. The testator intended to dispose of his whole estate and expressly says : Al Said DeLoyd children, together, to take one share, or one fifth of my said property, and said Eddie children, together, one fifth.” He divides his whole estate into five equal shares, one of which ho gives to each of his living children and one to the representatives of those deceased. The four DeLoyd grandchildren together receive no more than the two Eddie children. The number of equal shares in the estate is determined by the number of the testator’s children, without reference to the number of grandchildren in each family. If there were no will, the surviving Eddie child would take as the mother’s representative one fifth of the estate, subject to the widow’s right. Except for the minor bequests of small value, the provision for the widow and for the *54 preservation of the interests of the grandchildren during their minority, the will does not disturb the equal division of the testator’s property among his children and their representatives which the law would have made had there been no will. Hence a different division was not intended to be made. A construction of the will which would increase the remaining shares by the reduction of one, would defeat the testator’s expressed intention by making unequal that which he said should be equal. "W"e think it clear the testator intended the surviving children or child of his daughter Isabella should have one fifth of the estate,—that he considered her children together as a class. Hence the surviving child became entitled upon the death of the testator, as the only representative of the class, to the whole of the fifth share, which vested immediately upon the testator’s death, despite the intervening life estate and the fact that the enjoyment of the legacy was withheld until the child should arrive at the age of twenty-one. Benton v. Benton, 66 N. H. 169; Parker v. Leach, 66 N. H. 416. This grandchild having died since the vesting of the legacy, the father, William Eddie, upon the facts stated is now entitled to the whole share. P. S., c. 196, ss. 1, 2: Benton v. Benton, supra; Whitten v. Davis, 18 N. H. 88, 90. There is no occasion for the appointment of a trustee to care for the shares of such of the grandchildren as are not yet twenty-one. There is no reason why that duty may not properly be performed by the executor. Barker v. Hayes, 61 N. H. 643; Bell v. Sawyer, 59 N. H. 393; Madigan v. Burns, 58 N. H. 405; Ham v. Ham, 58 N. H. 70. That the executor should do so appears to have been intended and expected by the testator. Whether in the due administration of his trust the executor should join with the other legatees in a conveyance of a part of the estate; whether to carry out the purposes of the will the executor should now be licensed to sell the whole real estate; whether the real estate should be divided or sold, by proceedings in partition, or the interests of the minors preserved undivided or in severalty after partition, are questions upon which the facts before us are insufficiently stated to authorize any expression of opinion, and upon which the executor, as trustee, probably will not need instruction, while authority for such action as may be necessary can be obtained from the probate court. P. S., c. 194,. s. 15; c.' 198, s. 10. Case discharged. All concurred.