Kennard v. Kennard , 63 N.H. 303 ( 1884 )

Several reasons of appeal from the decree of the probate court, allowing a copy of Manning Kennard's will, with a copy of the probate by the orphans' court of Philadelphia, to be filed, are assigned.

The first reason, that of want of domicile of the testator in Philadelphia, being found against the appellants, cannot prevail.

The second reason is, that the will was not executed according to the laws of New Hampshire, in that the execution of the will was in the presence of only two witnesses, who subscribed their names to the attestation. The provisions of the statute, permitting the copy of a will with its probate made in another state to be filed, do not require the execution of the will to be according to the laws of this state, but only according to the laws of the state where probate of the original will has been made. G. L., c. 194, s. 12. The will was executed and proved according to the laws of Pennsylvania, where the domicile of the testator was. The testimony of two witnesses, experienced lawyers of Philadelphia, was competent to prove what the law of that place was upon the subject of executing and proving wills (Pickard v. Bailey, 26 N.H. 152, 169, 170, 171, and cases cited), and their testimony accords with the published statutes and judicial decisions of that state. Laws of Penn., 1833, p. 249, s. 6; Purd. Dig. 1872, p. 1474, s. 6. The existence or nonexistence of a foreign law is a question of fact, and the law of Pennsylvania having been found upon competent evidence to be as claimed by the plaintiff, that finding is conclusive.

Another reason of appeal is, that no duly authenticated copy of the will and probate was presented at the probate court here. The evidence was, that the record of which a copy is produced is the only record kept of the probate of wills in Pennsylvania. The papers produced were a copy of the will, the affidavits of witnesses to the genuineness of the signatures of the testator and witnesses to the will and the certificate of the register of wills to its due allowance in the orphans' court. These were duly attested by the register, and the seal of the court was attached, with the certificate of the presiding judge to the official character of the attesting officer, and that his attestation was in due form. The copies were copies of the only record kept, and were authenticated according to law. U.S. Rev. St. s. 905.

The remaining reason of appeal is, that the copies are filed with a view of transmitting title to real estate in New Hampshire, and the will not being executed according to the laws of this state cannot have that effect. The law in general is, that real estate is transmitted according to the law of the state or country where it is situated. Until 1868, to enable one interested in a will to produce and file a copy, with a copy of its allowance in court, and make it effective to operate upon property situated here, the will must have been executed according to the laws of New Hampshire. Rev. Sts., c. 157, s. 13; C. S., c. 166, s. 13; Gen. Sts., c. 175, s. 13. In that year (Laws of 1868, c. 1, s. 50) it was enacted that a copy of any will executed out of the state and allowed in a court with probate powers in any other state or country according to the laws thereof, on the application of any person interested, may, with a copy of the probate, be decreed to be filed in the probate office of any county where there is property upon which the will may operate, and the decree shall have the same effect as if the will were executed according to the formalities required by the laws of this state. G. L., c. 194, s. 13. Under that statute, if the applicant, Virginia Kennard, had any interest in the will of Manning Kennard, a copy of it duly proved in Pennsylvania, the state of his domicile, was properly decreed to be filed; and that being done, it operates to transmit real estate situated in Rockingham county as effectively as if it had been executed in the presence of three witnesses, according to the requirements of the New Hampshire statute of wills.

The defendants, who take this appeal, claim that Virginia Kennard, the plaintiff, has no interest in the will of her husband, Manning Kennard. By the terms of that will, the testator gave all his property, real and personal, to the plaintiff. If there was any property upon which the will would operate in New Hampshire, it came to Manning Kennard through the will of his father, James Kennard, and is situated in Rockingham county.

James Kennard, by his will, gave his property, consisting of bank stock, furniture, and a house and land in Portsmouth, to his executors, to be held by them in trust for the use and benefit of his wife, Frances B. Kennard, during her natural life or widowhood, and at her decease or remarriage to revert to his heirs, — fifty shares of bank stock, and an equal fourth part of the furniture, house and land, and other property, being designated as the share of his son, Manning Kennard. James Kennard died in 1856, and his widow never remarried. She enjoyed the use and income of all the property named in her husband's will until her death in 1882. She survived Manning Kennard, who died in 1873. It is claimed by the defendants that the interest in the share of his father's estate designated for him never vested, and he having died before the life estate of Frances B. Kennard terminated, nothing of that share was transmitted by his will.

The bequest of the personal estate by limitation over, after the use for life by Frances B. Kennard, is supported in the nature of an executory devise (Ladd v. Harvey, 21 N.H. 514), and, as a bequest to Manning Kennard to come into enjoyment at a future day, vested immediately upon the death of the testator. Brown v. Brown, 44 N.H. 281. The fifty shares of bank stock, and a fourth part of the furniture and other personal property, if any, passes by the will of Manning Kennard to the plaintiff as his sole legatee.

In the devise of the real estate, the limitation over, by way of remainder to Manning Kennard and others, created a vested remainder, if Manning Kennard, then living, had an immediate right to the possession of the estate designated to him upon the ceasing of the prior estate. The prior estate would terminate, at all events, upon the death of the life tenant, an event certain to happen; and the time for coming to the enjoyment of the estate being fixed by an event certain, the right of enjoyment, by a person then in being, immediately upon the occurrence of the event and the termination of the prior estate, was established. It was not necessary to vesting the remainder, that Manning Kennard should survive the first taker. It is the present right of future enjoyment whenever the possession becomes vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder. When the event on which the preceding estate is limited must happen, and when also it may happen before the expiration of the estate limited in remainder, the remainder is vested. 4 Kent 202, 203; 2 Wn. R. P. 228; Jarm. Wills, c. 25, s. 1, and cases cited. The provision that the life estate should terminate on the marriage of the life tenant did not prevent the remainder from vesting. For, as that estate would terminate at all events with the death of Frances B. Kennard, the uncertain contingency of her marriage prior to that time, if at all, could not change the character of the remainder from a vested to a contingent one; for in any event the ulterior estate would come in on the death of the life tenant, and, by the terms of the devise, the same person would take the estate on the marriage of the life tenant. 2 Jarm. Wills 414, 415; 2 Red. Wills 596, 597; Farmers Bank v. Hooff, 4 Cranch 323; Chappel v. Avery, 6 Conn. 31; Ferson v. Dodge, 23 Pick. 287, Biddle's Appeal, 69 Penn. St. 190.

In the construction of the devise, the rule of interpretation is the ascertainment of the testator's intention. Rice v. Society, 56 N.H. 191,197, 198, 203; Brown v. Bartlett, 58 N.H. 511; Wilkins v. Ordway,59 N.H. 378; Kimball v. Lancaster, 60 N.H. 264; Sanborn v. Sanborn, 61 N.H. ___. That intention is gathered not only from the words of the devise, but as well from the language of the whole will, from the relations of the testator to the persons who are the objects of his bounty, and from surrounding circumstances. The old and arbitrary method, of always giving to certain words and phrases a technical and fixed meaning despite the intention of the testator (Holmes v. Cradock, 3 Ves. 317), and of always making the application of artificial rules the test of construction (Scott v. Chamberlayne, 3 Ves. 302, Martin v. Holgate, 1 L. R. H. L. 175), has often led to gross injustice and the breaking of wills, and does not now prevail. The more liberal and natural rule, and one which makes the ascertainment of the testator's intention the paramount test of accuracy in interpretation, is now more generally applied. Pearsall v. Simpson, 15 Ves. 29; Leake v. Robinson, 2 Mer. 363, 386; Leeming v. Sherratt, 2 Hare 14; Thompson v. Thompson, 28 Barb. 432; Wright v. Miller, 8 N.Y. 9; Roome v. Phillips, 24 N.Y. 463; Letchworth's Appeal, 30 Penn. St. 175; Chess's Appeal, 87 Penn. St. 362; Dingley v. Dingley, 5 Mass. 537; Furness v. Fox, 1 Cush. 134; Eldridge v. Eldridge, 9 Cush. 516; Fay v. Sylvester, 2 Gray 171; Barton v. Bigelow, 4 Gray 353; Childs v. Russell, 11 Met. 16; Throop v. Williams, 5 Conn. 98; Cooper v. Hepburn, 15 Gratt. 551; Thompson's Lessee, 6 Ohio St. 480; Sinton v. Boyd, 19 Ohio St. 30; Braman v. Hill, 31 Md. 181; Saylor v. Plaine, 31 Md. 158; Clark v. Tennison,33 Md. 85; 1 Red. Wills 423; 2 id. 619; 1 Jarm. Wills 758, n.; 2 id. 436; 2 Wn. R. P. 227; 2 Cruise Dig. 203.

In doubtful cases a construction is favored that gives a vested rather than a contingent interest, and except the contrary appears in clear and unmistakable terms, it will be presumed that the testator intended to dispose of his, whole estate by the will. It is plain, from the terms of his will, that James Kennard never intended or contemplated leaving a part of his estate to lapse by reason of a doubtful contingency, or for want of more express words indicating that the remainder created by the devise should vest at once on the death of the testator. The intention is as manifest that Manning Kennard should enjoy the estate designated for him after the termination of the widow's prior estate, as that the widow should enjoy the use and income of the estate given to trustees for her benefit during life or widowhood. It is as if James Kennard had given the whole estate to Manning and his other children, subject to the widow's enjoyment of the use for life, or so long as she might remain unmarried. Looking at the terms of the devise and the intention of the testator as gathered therefrom, the only conclusion that can be reached is, that the devise to Manning Kennard in remainder, after the satisfaction of the prior interest of Frances B. Kennard, is a vested remainder, and the estate so devised is transmitted by Manning Kennard's will.

The case of Hall v. Nute, 38 N.H. 422, followed by Hayes v. Tabor,41 N.H. 521, is cited as authority against the view here expressed. To the extent that these cases substitute an arbitrary and fixed rule of interpretation for one which makes the ascertainment of the testator's intention the guide in construction, they are overruled. Upon the rule of testamentary interpretation established in this state, it is immaterial whether the doctrine of remainders is correctly or incorrectly applied in Hall v. Nute and Hayes v. Tabor. 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.

Decree affirmed.

CLARK, J., did not sit: the others concurred.