Wilkins v. Ordway , 59 N.H. 378 ( 1879 )

If husband and wife were of kin or heirs of each other, the relationship would extend to the children of either by a former marriage, and a decree of divorce would dissolve it. The common-law doctrine of dower and curtesy originated in the fact that husband and wife are not heirs of each other. Ordinarily, technical terms are to be understood according to their legal signification, unless some evidence appears of an intention to use them in a different sense. The phrase "next of kin," as applied to relatives by blood, having a technical legal signification under the statute of distributions when used without qualification, is held to mean next of kin according to the statute. Pinkham v. Blair, 57 N.H. 226. But husband and wife are nowhere included with "heirs" or "next of kin" in the statutes. These terms, in their proper and legal signification and acceptation, have reference to relationship by blood; and in Richardson v. Martin, 55 N.H. 45, it was held that the widow of a devisee cannot take as heir of her husband, under a clause giving certain bequests to him and his heirs, unless it is apparent from the will that the word "heirs" is not used in its ordinary sense. Upon the authority of that case the appellant is not entitled to a share in the estate under the provisions of the will giving one half of the estate to the heirs of his wife.

But as the interpretation of a will is the ascertainment of the testator's intention (Brown v. Bartlett, 58 N.H. 511), very little competent evidence may be sufficient to show that the testator used the word heirs in a broader sense than its legal meaning, intending to include the husband of a deceased wife, or the widow of a deceased husband; and when such intention is shown by competent evidence, it is his will, however inartificially expressed; but ordinarily, in the absence of evidence showing a different intention, the word "heirs" will be understood as used in its legal sense.

In this case the will appears to be carefully and accurately drawn, and there is no evidence that the testator intended to use the word "heirs" in any other than its ordinary and legal signification. The appellant was the husband of the testator's daughter when the will was made. There is nothing in its provisions indicating a purpose to make him a beneficiary; and the fact that he is nowhere named in the will is a circumstance tending rather to the conclusion that the testator did not intend he should share in the estate. The fact that the testator uses the word "heirs" in the clause of the will under consideration, and the word "children" in reference to the other half of the estate, seems to indicate the testator's accuracy in the use of language, rather than a purpose to enlarge the ordinary meaning of the word "heirs," as claimed in the argument. He properly designates the children of his daughter as the beneficiaries in both cases, by describing them as her children in her lifetime, and as her heirs after her decease. We discover nothing indicating that the testator used the word "heirs" in the sense of distributees, or that he intended the appellant should take anything under the will. 2 Jar. Wills 61; Keteltas v. Keteltas,72 N. Y. 312; Luce v. Dunham, 69 N.Y. 36; Cleaver v. Cleaver, 39 Wis. 96; Esty v. Clark, 101 Mass. 36; Lord v. Bourne, 63 Me. 368.

Appeal dismissed.

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