Miller v. Lamprey , 68 N.H. 376 ( 1895 )

Simon P. Towle left no "heirs" within the meaning of that word as used in the will of David. The expression, "his heirs," was not intended as a description of the estate devised to Simon P. If the testator had intended to devise to him a fee-simple title, or an estate that should vest in him, his heirs and assigns forever, no reason is apparent for the provision that in case of the death of Simon P. without heirs, the estate should pass "to his nearest akin by the name of Towle, or his nearest akin on the father's side." It is not to be presumed that no meaning was intended to be conveyed by these words. Sanborn v. Sanborn, 62 N.H. 631. All the competent evidence shows that the testator's general purpose was to so dispose of the land that it should remain in the Towle family; and to accomplish that purpose, he in effect provided that upon the death of his nephew without lineal descendants, it should become the property of the nearest of kin to the nephew by the name of Towle or "on the father's side." A construction that would allow Simon P. to dispose of the land by will would contravene the plain intention expressed by David in his will. Upon the reported facts, the plaintiffs are the owners of one fourth of the entire estate by inheritance, and under the will of David they became the owners of an additional half of it. The will of Simon P., therefore, could operate only on the remaining one fourth which he inherited from his uncle, his sister Georgianna, and the infant.

Judgment for the plaintiffs.

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