Hayward v. Spaulding

Parsons, C. J. At his decease the testator left a widow and two sons. Neither of the sons then had, or had had, children. Under the provisions of his will, a child of either of the two sons living at the testator’s death would haAe taken an interest in the real estate, defined under the terms of the common laiv as a vested remainder, the vesting of which would have opened to let in after-born children, while such interest might have been destroyed by the consumption of the estate in the necessary support of the *93 widow. As there was no child in existence when the will took effect, the gift over was to a dubious or uncertain person. Such a remainder is described as contingent. As no child was born during the existence of the particular estate in the widow,, the remainder never vested; and under the strict rules of the common law, the remainder failed because of the termination of the estate which supported it. Executory devises were instituted to support the will of the testator in cases where by the rules of law a devise of a future estate could not operate as a remainder. They “were allowed out of indulgence to testators, that they might, without the intervention of trustees to preserve remainders, establish future interests in strict settlement beyond the reach of those who had the prior estates.” Burleigh v. Clough, 52 N. H. 267, 273; Wood v. Griffin, 46 N. H. 230, 235 ; Yeaton v. Roberts, 28 N. H. 459 ; Eaton v. Straw, 18 N. H. 320. If there had been no devise to the widow, or if the devise to her had lapsed by her death before the testator, the devise to the unborn children would have been supportable as an executory limitation (Fearne Rem. 525, 526), because in such case the limited estate was never supported by a freehold and could not be construed as a remainder, which requires such an estate to support it. But in consequence of the rule that a devise which can be construed as a remainder will never be deemed an executory devise (Burleigh v. Clough, 52 N. H. 267, 273), it is said that where the preceding freehold has once vested so as to support a contingent remainder, the devise cannot by any subsequent accident enure as an executory limitation. Fearne Rem. 386., 395, 526. But the validity of these rules, however well supported by authority, need not be considered. However simple their application would make the disposition of the case, they cannot be relied upon. Rules of interpretation under which particular phrases or terms are necessary to express a particular intention, or to give effect thereto, have long since been abandoned here. As was said in Kennard v. Kennard, 63 N. H. 303, 311, in reference to earlier cases then cited and relied upon: “ Upon the rule of testamentary interpretation established in this state, it is immaterial whether the doctrine of remainders is correctly or incorrectly applied. . Whatever that doctrine may be and however it may be applied, it does not set aside the supreme rule that the interpretation of a will is the ascertainment of the testator’s intention. If it upholds the intention disclosed by the terms of the will in this case, it is useless; if it does not uphold it, it is equally useless, as it cannot break the will.” It is not necessary that the intention of any written instrument *94 should be expressed in a ’ particular form of words, or by the use •of technical terms. “It is.sufficient if the intention of the parties •can be gathered from the instrument, read in the light of the competent evidence bearing upon its interpretation.” Upton v. Hosmer, 70 N. H. 493, 495. The testator’s intention is the sole subject of inquiry. It “ is determined as a question of fact by competent evidence, and not by rules of law.” Edgerly v. Barker, 66 N. H. 434, 447, and cases cited; Stratton v. Stratton, 68 N. H. 582, 585. When ascertained, such intention is to be given effect, with the exception, however, that the intention cannot be followed when it is impossible or illegal to do so; “ for an intention will not avail to create an illegal or an impossible estate.” Burleigh v. Clough, 52 N. H. 267, 271. Decisions “which have in so many •cases defeated the intention of testators, by substituting, through the application of an artificial and technical rule of law, a differ-ent estate from that which the testator intended ” (Eaton v. Straw, 18 N. H. 320, 329, 330), are not now followed here. The testator intended that his real estate, as well as his personal property, should go to the children of his two sons. The gift was -one he had power to make. The fact that his wife survived him, or that no child was born in the lifetime of the widow, is not a sufficient reason for breaking his will. It cannot be inferred from the will that he intended his sons’ children should have the estate if he survived his wife, and that his sons should have it if she survived him, because he expressly provided in that case for the ■extent to which the gift to the children should be diminished by the necessities of the widow. Neither does his failure to provide trustees to hold an estate sufficient to support the remainder, in case of the death of his widow before the anticipated birth of children, render impossible the preservation of the estate for them. He knew that at the death of his widow the appointment of an executor in the capacity of the plaintiff, to collect the estate and transmit it to the persons entitled, would be required. Not having provided another to hold the property, if necessary, it is to be inferred he intended to impose such trust upon the plaintiff, or upon the person who might occupy his position. Campbell v. Clough, 71 N. H. 181; Chase v. Currier, 63 N. H. 90. If the plaintiff cannot execute the trust, a trustee can be appointed by the superior court. 1 Per. Tr., s. 121. The testator intended that both the real and personal estate ■should take the same course. Effect must be given to that intention. Pa rker v. Ross, 69 N. H. 213, 216. It is unnecessary to consider whether the objections that have been urged to the preservation of the real estate for the unborn children are, or are not, applicable to the personal estate. If they are not, as appears to *95 be conceded, in argument, tbe testator’s intention that both should take the same course is a further answer to the objections that have been raised. The time of distribution intended by the testator is now immaterial. Whenever he intended or expected such distribution to be made, he did not intend the distribution should be made before any of the class to whom lie gave his estate came into existence. As the testator intended the children should have all the property and gave none to his sons, he did not intend the sons should have the income after, or before, the children should be born. (Jase discharged. Peaslee, J., did not sit: the others concurred.