FROM MERRIMACK PROBATE COURT. The contingency upon which Charles E. Pinkham was to take the estate devised to his sisters never happened, he having died during the lifetime of Mary without issue. No part of his father's estate devised to his sisters ever descended to him, or to the heirs of is body, because there were no such heirs. The will of Richard Pinkham is therefore to be construed as if no devise or bequest to Charles had been made. Eaton v. Straw, 18 N.H. 320, and authorities cited on p. 324. *Page 239
I. The question presented is, whether, upon the death of Mary without issue, the estate which she inherited from her father descended to her heirs, or to the next of kin of her father; and the answer to this question depends upon whether the limitation over to the next of kin of the testator by way of executory devise is void for remoteness. In other words, Does the language of the will — "if both of my said daughters shall die without issue" — mean without issue at the time of their respective deaths, or an indefinite failure of issue at any time afterwards, no matter how long after? If the latter, then the limitation is void for remoteness; but if the former, then it took effect by way of an executory devise, and the estate descends to the next of kin of Richard Pinkham.
In Hall v. Chaffee, 14 N.H. 215, is an interesting discussion by PARKER, a. J., whether the courts, of this state would, when a case should arise, be bound to follow the English decisions, that a devise to a person, with a limitation over in case he should die without issue, would be void for remoteness if such person should die leaving no issue living. It was not necessary in the decision of that case to decide what words would and what would not be held to denote such a failure of issue, because the language of the will then under consideration did not admit of any other construction than that the testator intended a failure of issue at the time of the death of the first taker. In the very able review by Judge PARKER of the authorities, and in his discussion of the principles that underlie the doctrine, he very significantly questions whether we are bound to follow a cast-off rule of the English jurisprudence as a true rule of the common law here upon the subject. Likewise, in the subsequent cases of Bell v. Scammon, 15 N.H. 381, Eaton v. Straw, 18 N.H. 320, and Downing v. Wherrin,19 N.H. 9, the intention of the testator clearly appeared to be a failure of issue living at the time of the death of the devisee, and consequently the court was not called upon to determine whether the words used of themselves denoted a definite failure of issue.
In the case before us the court is saved the trouble of inquiring whether the language of the will — "if both my said daughters shall die without issue" — means an indefinite failure of issue, according to the old English rule in relation to estates of inheritance. The intention of the testator, to be collected from the whole will taken together, is "the pole star to guide the court" in the interpretation of the will.
The testator devised his estate to his two daughters in fee, "they conforming to and discharging the provisions of his will," which he established in the following terms:
"And my will further is, that if either of my said daughters shall die without issue, that the survivor of them and her heirs and assigns shall have the share of her deceased sister; and if both of my said daughters shall die without issue, that my son, Charles E. Pinkham, shall have the use and income of all my said estate during his natural life, and after his death the same to descend to the heirs of his body and their heirs and assigns forever; but if the said Charles E. Pinkham *Page 240 shall die without any heirs of his body, then my will is that said estate shall go to my next of kin and their heirs and assigns forever."
The will also provided that the daughters should pay certain annuities to the testator's son, mother, and sister during their lives; and if the daughters died without issue and the estate should come to his son and the heirs of his body, he and they should continue the same annuities to his mother and sister during their lives.
These provisions taken together clearly show, to my mind, that the testator intended a failure of issue at the time of the deaths respectively of his daughters and son. I do not see how they admit of any other construction. The provision, that if either daughter should die without issue the survivor and her heirs should take the share of the deceased sister, certainly shows that the testator had in his mind only the contingency of her dying leaving no issue at the time of her death, and not an indefinite failure of issue long afterwards — perhaps after several generations. So the provision, that if both daughters should die without issue the son Charles should take a life estate, remainder to the heirs of his body, unmistakably shows that by the words "shall die without issue" the testator meant a dying without issue living at the time of the death of his daughters. Likewise the provision, that upon the death of the son the estate should descend to the heirs of his body and their heirs, shows that the same idea was in the mind of the testator, and that the thought of an indefinite failure of issue after several generations was not what he intended to provide for. There is nothing in any of these several provisions that indicates that the testator intended the dying without issue should be understood in the technical sense of an indefinite failure of issue, according to the discarded English rule, when applied to both of his daughters, and in the common and grammatical sense of a definite failure of issue when applied to the daughter who should first decease. It is a familiar rule, applied in the construction of wills, that words occurring more than once in a will shall be presumed to be used always in the same sense, unless a contrary intention appear from the contest, or unless the words be applied to a different subject. Redf. on Wills 427. The further provision, imposing the payment upon the successive takers of the property of an annuity to the mother and sister of the testator, is also evidence, as it seems to me, that he intended a definite failure of issue at the death of each successive taker.
It is well settled, also, that a limitation to a survivor indicates an intention to limit on a definite failure of issue. Fosdick v. Cornell, 1 Johns. 440, and authorities cited in appellants' brief.
It is no objection that the devise over depended upon more than one contingency. The number is not material, provided they are all to happen within the compass of a life or lives in being, and twenty-one years afterwards (adding, in case of gestation, about nine months). In this case all the contingencies upon which the devise over to the testator's next of kin depended must happen upon the deaths of his three children living at the date of the execution of his will. *Page 241
For these reasons I am satisfied that the devise over to the next of kin of the testator took effect upon a definite failure of issue in his two daughters, which occurred upon their dying without leaving issue living at their deaths, and the devise over is therefore valid as an executory devise.
II. The next question that presents itself is, whether the estate over vested in the next of kin who were such at the death of the testator, or at the death of his surviving daughter. The rule as given in Jarman is, that where an estate is given to a stranger for life, or any other limited interest, then over to his next of kin, those who stand in that relation at the death of the testator will be entitled to take, whether living or not at the period when the devise over takes effect. 2 Jarman on Wills 52.
But if there be a gift for life or in fee to persons who are themselves the sole next of kin of the testator at the time of his decease, the gift over must be considered as intended to refer to the persons answering the description of next of kin at the death of the first taker. Ib., 54, 55.
In Redfield on Wills (ed. of 1864, ch. 9. sec. 21, p. 392), the author says, — "The devise or bequest of property to the testator's heirs at law means those who are such at the time of his decease, unless a contrary intent is very obvious. Mere conjecture or surmise is not sufficient. But where there are intervening estates, and the remainder is contingent, it will be construed as having reference to those who shall sustain the relation of heirs at the time the estate vests in possession. But the fact that the persons to whom the estate for life is given are among such heirs is no sufficient ground to vary the general construction."
In Abbott v. Bradstreet, 3 Allen 587, the well settled general rule of construction is stated to be, that a bequest or devise to "heirs" or "heirs at law" of a testator will be construed as referring to those who are such at the time of the testator's decease, unless a different intent is plainly manifested by the will. Where such intent is plainly manifested it will of course prevail; — see authorities cited on p. 589. On p. 591 the court say, — "It has been held in some cases, that if there is a gift to a person for life with remainder to the testator's next of kin, and the person taking the life estate is the sole next of kin at the death of the testator, the remainder will be considered as given to the persons answering the description at the termination of the estate for life. Jones v. Colbeck, 8 Ves., Jr., 38; Long v. Blackall, 3 Ves. 486. And where the prior legatee, whose interest on his death without issue is divested in favor of the ulterior gift to the testator's next of kin, was one of such next of kin at the time of the testator's death, this has been deemed a sufficient ground for construing the words to mean the next of kin at the time of the happening of the contingency. Butler v. Bushnell, 3 Mylne Keen 232. But both those classes of cases are generally recognized as exceptional, and the construction adopted is usually strengthened by some special circumstances indicative of intention. Briden v. Hewlett, 2 Mylne Keen 90. Most of *Page 242 them are cases of a bequest over, upon failure of some prior object of the testator's bounty."
Sears v. Russell, 8 Gray 86, is a case of this class, where upon special circumstances the intent of the testator was found to be a gift to those who were heirs at the time of distribution.
In Jones v. Colbeck, cited by the appellants, the daughter was the only next of kin of the testator at the time of his death; and it was held that by "relations" the testator intended those who were such at the death of his daughter, and not at his own, "deeming it impossible that the testator could mean that his daughter, whom he evidently thought would survive him, should take under the devise over."
Briden v. Hewlett, 2 Mylne and Keen 90, also cited by the appellants, is another case where the intention of the testator was held, in opposition to the general rule, to be, under the circumstances disclosed by the will, that the property devised to his next of kin meant next of kin at the death of the first taker. The Master of the Rolls said, — "It is impossible to contend this testator meant to give the property in question absolutely and entirely to his mother, because the gives it to her for life with a power of appointment."
Enough authorities have been cited to show what the rule is which must govern the decision of this case. Looking, then, at the will of Richard Pinkham, was his intention that, in the event of his children dying without issue, his estate should descend to his next of kin who were such at the time of the death of the last survivor of them? His only next of kin at the time of his own decease were these same three children to whom he devised his estate in fee. I cannot put this any more strongly than the learned counsel for the appellants does in his argument: "It would be, it seems to us, extremely absurd to suppose the testator could possibly have intended to give the property over after the death of his children without issue, to those very children to whom he had previously given it in fee. In the language of the cases we have cited, such an idea is impossible to be entertained: and the testator must have intended to give it to those who should be his next of kin at the decease of the last survivor of his children, they all having died without leaving living issue. * * Such a devise over to those to whom the property had already been given in fee would be repugnant to the preceding provisions of the will, because both could not be carried into effect, and therefore void. Sweet v. Chase,2 N.Y. 73."
III. At the time of the death of the surviving child of the testator, there were living two brothers and a sister of the testator. Four brothers had previously deceased, all leaving children who were then living. The last question presented for our consideration is, whether, under the term "next of kin," the two surviving brothers and sister only are included, or also the children of the four deceased brothers.
Counsel for the surviving brothers and sister contend that they alone are meant by next of kin, and cite Elmesly v. Young, 2 Myl. K. 780, as authority.
That was an appeal from Sir JOHN LEACH, Master of the Rolls, *Page 243 reported in the same volume, p. 82, who held, in 1833, that the words "next of kin" must be taken to mean next of kin according to the statute of distributions. On appeal, in 1835, the Lords Commissioners SHADWELL and BOSANQUET reversed his decision, and held that the words "next of kin," used simpliciter, are to be taken to mean nearest of kin. By this decision, the cases of Phillips v. Garth, 3 Bro. Ch. Ca. 64, decided in 1790, and Hinckley v. Maclarens, 1 Myl. K. 27, decided in 1832, as well as Elmesly v. Young, as decided by the Master of the Rolls in 1833, were overruled; — also Stamp v. Cooke, 1 Cox 234, decided in 1786, where the question was whether "next relations" included nephews and nieces as well as sisters. Lord KENYON said, — "If the residue had been given to `the next of kin,' and the testator had stopped there, the statute would have been the rule to go by; and although nephews and nieces are not in fact so near as brothers and sisters, yet the fund would have been distributed per stirpes, according to the statute."
On the other hand are the cases of Garrick v. Lord Camden, 14 Ves. 372, Smith v. Campbell, Coop. 277, and Brandon v. Brandon, 3 Swanst. 312, where the rule as laid down in Phillips v. Garth is either dissented from or questioned.
The case of Elmesly v. Young may be considered as having settled the question in England. How far the result was due to the provisions of the statute of distributions does not clearly appear;* but the conclusion reached is in conflict with our own case of Varrell v. Wendell,20 N.H. 431, decided in 1846, nine years after the decision in Elmesly v. Young, and undoubtedly with full knowledge by the learned judge who delivered the opinion of the court of what had been held in that case. In Varrell v. Wendell, a bequest was made of bank stock for the life of the legatee, with power of sale on certain conditions, and to be apportioned among "the relations" of the testator according to the discretion of the legatee, to be by them enjoyed after her decease. She attempted to dispose of her stock by will, apportioning it among various persons that were of kin to the testator, in different degrees, and excluding some who were his next of kin. The question was whether this was a valid execution of the power. It was held by the court, GILCHRIST, J., that by his "relations" the testator must have intended, without any reasonable doubt, his "next of kin" according to the statute, and that *Page 244 the apportionment must be confined to the next of kin according to the statute of distributions.
Referring to our statute of distributions, we find that the real estate (and the same rule applies to personal estate) of every person deceased descends in equal shares, —
1. To the children of the deceased, and to the legal representatives of such of them as are dead.
2. If there be no issue, to the father if he be living.
3. If there be no issue or father, in equal shares to the mother and to the brothers and sisters of the deceased, or their representatives.
4. To the next of kin in equal shares. Gen. Stats., ch. 184, sec. 1.
Who, then, were the next of kin of Richard Pinkham when the devise over to them took effect — to wit, upon the death of his last surviving child, Mary Ann Pinkham, without issue? No one named in the first clause of the statute, for his children were all dead, leaving no legal representatives. By the second clause, his father if he had been living; but he, too, had deceased. By the third clause, the mother and the brothers and sisters, or their representatives: his mother had also deceased, but there were two brothers and one sister living, and the children of four brothers deceased. Plainly, then, the two surviving brothers and sister, and the representatives of the deceased brothers, took the estate devised over to "the next of kin" of the testator.
By the construction contended for by the appellants, if at the death of Mary A. Pinkham there had been living other children than Lucy and Charles, and the representatives of still other children deceased, the estate must have descended to the children to the exclusion of the representatives of the deceased children: that is, if, as the appellants contend, by "next of kin" is meant the nearest of kin, children would take to the exclusion of children of deceased children, that is, grandchildren, and uncles and aunts to the exclusion of children of other uncles and aunts, that is, nephews and nieces. Nothing but imperative necessity would compel us to assent to a result so unjust and unnatural.
Except in Varrell v. Wendell, I cannot find that this question has before been raised in this court, or that it has been raised even in the probate courts of this state, — from which I infer that the term "next of kin" in wills, in this state, has been uniformly construed with reference to the statute of distributions.
How Richard Pinkham intended the words "next of kin" to be understood, is a very material inquiry, and any expression of his in his will, however slight, that would throw any light upon his intention, would be laid hold of for that purpose. 2 Wm.'s Ex. 1364, notes. It is not probable that he ever heard of the doctrine of Elmesly v. Young. It may be presumed, however, that he was familiar with our statute of distributions, and of the practice under it, and hence made in his will with reference to the law as understood in this state.
Our statute of distributions is plain and simple. It is the same for *Page 245 both real and personal estate. It is important that the rules of descent and distribution, and especially for the administration of estates, should be simple and uniform. The rule of construction here laid down, it seems to me, commends itself to the common-sense of every one and will oftenest carry into effect the intention of testators.
The decree of the probate court should be set aside, and a new decree entered, giving the funds in the hands of the administrator to the surviving brothers and sister of the testator at the time of the decease of Mary Ann Pinkham, and to the representatives of the deceased brothers per stirpes, in equal shares. The thirty dollars advanced to Mrs. Chapman must be taken into account in determining her share.
CUSHING, C. J., and LADD, J., concurred.
Decree accordingly.
NOTE. At the December term, 1876, the appellants moved for a rehearing upon to last point, but the motion was denied. Costs were decreed in favor of the appellants against the children of the testator's deceased brothers and sisters.
* Lord Commissioner SHADWELL, in his opinion, remarks, — "It is said that the term `next of kin' means, by force of its own natural import, the persons who take as next of kin by the statute of distributions; but this is not so manifest upon the face of the statute itself, in the sixth section of which it is enacted, `that in case there be no children, nor any legal representatives of them, then one moiety of the estate is to be allotted to the wife of the intestate, the remainder of the said estate to be equally distributed to every of the next of kindred of the intestate who are in equal degree, and those who legally represent them;' so that the statute does emphatically, in directing a distribution in a particular case, take notice that the persons who are to take shall be the next of kin, and some other persons besides the next of kin of the intestate." Pp. 186, 187.