Peaslee v. Rounds , 77 N.H. 544 ( 1915 )

The intention of the testator is the sovereign guide in the interpretation of a will. That being ascertained, the court must enforce it, and has no discretion in the matter. Opinion of the Justices,66 N.H. 629, 651. "The whole will must be taken together, and such construction be put upon it as will carry into effect the purposes the testator had in view. We must be guided not by the letter, but by the spirit of the instrument." Judge of Probate v. Hardy, 3 N.H. 147, 151. "We are not so much to follow any particular words or phrases, as to gather from the whole the testator's real intent." Healey v. Toppan, 45 N.H. 243,264. "The testator's intention expressed in the will, whatever be the form of the expression, is the governing factor." Paul v. Philbrick, 73 N.H. 237.

It is therefore our duty to ascertain, if possible, the intention of Martha A. Peaslee when she wrote the sixth clause of her will, and to execute that intention. The bequest is to the city of Dover for the indigent children in its Protestant schools. It is contended that the bequest fails because there are no schools in Dover known as the Protestant schools. It is true there are no schools in Dover by that name, but it is apparent that when the testatrix wrote "Protestant schools" she intended the public schools of Dover. She undoubtedly knew that there were large parochial schools there maintained by the Roman Catholic Church, and she used the word "Protestant" to distinguish the schools to which she was making a bequest from the parochial schools. It is clear that she intended to make the bequest for the benefit of the indigent children in the schools of Dover. She says: "I give, bequeath and devise unto the said city of Dover for the indigent children in its Protestant schools." The word "its" distinctly shows that the bequest was made to the city of Dover for the indigent children in its schools; and as the public schools are the only schools which the city has, there can be no doubt that it was the intention of the testatrix to make the bequest to the city of Dover for the benefit of the indigent children in its public schools.

That the bequest was for the benefit of the indigent children in the public schools of Dover could not have been questioned if the language of the will had been: I give, bequeath and devise unto the said city of Dover for the indigent children in its schools. The word "Protestant" could be rejected as surplusage. The case seems fairly to come within the rule, falsa demonstratio non nocet. "It is characteristic of the cases within that principle, that there is a sufficient description of the object or subject intended, independent of the erroneous description." Trustees v. Peaslee, 15 N.H. 317, 329; Winkley v. Kaime, 32 N.H. 268, 274.

While the purpose of the testatrix might be carried out by rejecting the word" Protestant" as surplusage, it can also be done by substituting public for "Protestant"; for to effectuate the intention of the testator one word or phrase may be substituted for another. Hall v. Blodgett, 70 N.H. 437; Phelps v. Bates, 54 Conn. 11; Du Bois v. Ray, 35 N.Y. 162; Bliven v. Seymour, 88 N.Y. 469; Hallowell's Estate, 11 Phila. 55; Slingluff v. Johns, 87 Md. 273; State v. Joyce, 48 Ind. 310; Briant v. Garrison,150 Mo. 655; 40 Cyc. 1401. Upon the authority of these decisions, the soundness of which is not questioned, the word "Protestant" in the will of the testatrix should be construed as meaning public, and thereby her purpose and intention can be carried into effect.

In relation to the note of Mrs. Isabella Anderton and the uncashed check on the Strafford National Bank, as to which the executor prays for instruction, the plaintiff concedes in his brief that the note would not pass under section three of the will. Neither the note nor the uncashed check would pass under section three, but under section seven of the will. It is held that promissory notes are securities. Jennings v. Davis, 31 Conn. 134, 139; Wagner v. Scherer, 89 N. Y. App. Div. 202; Bank of Commerce v. Hart, 37 Neb. 197, 202. It has been decided in this state that "a bank check is substantially the same as an inland bill of exchange; and, in general, is governed by the law applicable to bills of exchange and promissory notes." Barnet v. Smith, 30 N.H. 256, 264.

The executor is advised to pay to the city of Dover $3,000, the income of which is to be, expended by said city for the indigent children in its public schools, for the purposes specified in section six of the testatrix's will; and that the note of Mrs. Isabella Anderton and the uncashed check on the Strafford National Bank pass under section seven of said will.

Case discharged.

All concurred.