Richardson v. Martin , 55 N.H. 45 ( 1874 )

The questions in this case arise under the will of William Plummer, who gave the income and avails of certain property to the grandchildren of his sister Deborah, or their heirs. At the decease of the testator, his sister Deborah's grandson, John D. Martin, was alive, and the appellee, Anna M. Martin, was his wife. The appellant is the executor and trustee under said Plummer's will, and it is agreed that he holds the funds in dispute as executor and not as trustee. A certain portion of this fund was income, which had accrued during the life of John D. Martin. John D. Martin left the appellee his widow, and no children. The decree of the judge of probate treated the appellee as one of the heirs of John D. Martin, and decreed to her one half of so much of the avails as were given by the will to the heirs of John D. Martin, and the question is whether the appellee is entitled to take as heir of John D. Martin. By Gen. Stats., ch. 176, administration may be granted to the "wife," or "next of kin." By Gen. Stats., ch. 184, the next of kin is spoken of as different from the widow. By Campbell v. Wallace, 12 N.H. 362, and Stevenson v. Cofferin,20 N.H. 150, the term "heirs" is applied to next of kin. The term "heir," in common understanding, applies to those who take by reason of blood relationship, or, in the terms of the statute, "next of kin." "When, therefore, these terms" (the word "heir" or "heirs") "are used in a will affecting personal property, they will be held equivalent to next of kin, and as including those persons who would take the estate under the statute of distribution." 2 Redf. on Wills 62. In construing wills, words are to be understood in their ordinary sense. Gale v. Drake, 51 N.H. 78; Mathes v. Smart, 51 N.H. 438. The appellee, therefore, cannot take as heir of John D. Martin under this will.

She is entitled, as the widow of John D. Martin, to her share, as given by statute, of what remains of his personal estate after paying debts and expenses of administration; but she must reach this through the administrator of John D. Martin's estate, through whom alone she can ordinarily acquire title to the personal estate of her deceased husband.

Nothing appears in the case to show that the income accruing during the life of John D. Martin did not vest in him and make part of his estate, so that the appellant should pay one half of that to the administrator of John D. Martin. The appellee can take nothing as heir of John D. Martin, and the decree should be modified accordingly. The appellant, being executor and trustee under the will, is bound to execute his trust according to law, and has sufficient interest to entitle him to maintain an appeal. Shirley v. Healds, 34 N.H. 407.