Drake v. True , 72 N.H. 322 ( 1903 )

1. As the testatrix was the owner of twenty shares of the stock of the National Mechanics and Traders Bank when she made her will, it is more probable than otherwise that she intended, in her bequests to her two nephews of ten shares each of the stock of that bank, to dispose specifically of the stock she then owned. A finding that she gave them twenty shares of that stock generally, whether she happened to be the owner of any at her decease or not, could only be supported by evidence which is not disclosed by the case. As she had but ten shares at her decease, the two nephews, whom she made equal legatees of the twenty shares she possessed at the date of the will, are entitled to five shares each. Gardner v. Gardner, ante, p. 257; White v. Winchester, 6 Pick. 48; Trustees v. Tufts, 151 Mass. 76.

2. The case does not show that the administrator is legally interested in the second question submitted. For aught that appears, he may be able to settle the estate without resorting to the real estate which was occupied by the testatrix as a homestead. Under such circumstances a construction of the will defining the ownership of the land serves no useful purpose, and the advice of the court thereon is not given. Bailey v. McIntire,71 N.H. 329.

Case discharged.

All concurred.