Utley v. Titcomb , 63 N.H. 129 ( 1884 )

Benjamin Titcomb takes both legacies. They differ in amount; are given in different instruments, — the first directly, the last through the intervention of a trustee. The former, in one event, is increased two-fold and absolute; the latter is for life only. In one, the remainder is contingent and goes to his brother, while in the other it is vested in the heirs at law, there being no residuary legatees named in the will. By the codicil, one item of the will, but not the one in question, is expressly revoked. There is no evidence that the testator intended to diminish his bounty to William H., who under the first clause in the will takes three thousand dollars for life, and, in case he survives Benjamin, six thousand dollars absolutely. But a revocation of that clause, so far as it relates to Benjamin, would necessarily reduce the legacy to William, in the event that he survives his brother, to three thousand dollars; and whether he would take in that sum more than a life interest may not be altogether certain. These circumstances are each evidence tending to show, and taken together are decisive, that the legacy given by the codicil was intended to be cumulative.

Whether all the evidence received is competent need not be considered. If competent, it is not of sufficient weight to overbalance the intrinsic evidence. The change in the testator's feelings toward Benjamin is not necessarily inconsistent with an intention to give him both legacies. It may well be that he was thereby induced to give to William in trust the legacy which otherwise he would have given directly to Benjamin.

The excluded evidence was properly rejected.

Case discharged.

STANLEY, J., dissented: SMITH, J., did not sit: the others concurred.