Amoskeag Trust Co. v. Preston

222 A.2d 158, 107 N.H. 330, 1966 N.H. LEXIS 186
CourtSupreme Court of New Hampshire
DecidedJuly 29, 1966
Docket5497
StatusPublished
Cited by5 cases

This text of 222 A.2d 158 (Amoskeag Trust Co. v. Preston) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amoskeag Trust Co. v. Preston, 222 A.2d 158, 107 N.H. 330, 1966 N.H. LEXIS 186 (N.H. 1966).

Opinions

Blandin, J.

The sole question is whether the testatrix, Medora Elliott, by her use of the word “issue” in her will executed May 22, 1928 intended to include a child adopted on June 11, 1937 by her daughter Laura, after the testatrix’s death on October 27, 1929. Ever since 1842, the statutory definition has been [331]*331that “ The word ‘ issue, ’ as applied to the descent of estates shall include all the lawful lineal descendants of the ancestor. ” R. S. (1842) 1:16; R.L., 7:20; RSA 21:20. Our courts have interpreted the statute to give issue its ancient and modern meaning as including only the descendants in the blood line of the ancestor and excluding adopted children. Morse v. Osborne, 75 N. H. 487. See Parker v. Carpenter, 77 N. H. 453; Kimball v. Penhallow, 60 N. H. 448; Jenkins v. Jenkins, 64 N. H. 407; Petition of Wolcott, 95 N. H. 23; Sylvester v. Newhall, 97 N. H. 267, 271. This view represents the overwhelming weight of authority. Annot. 86 A.L.R. 2d 12, 80.

In the present case, the testatrix’s son-in-law, Albert H. White, who drafted the will, was an experienced lawyer. Not only would it ordinarily be presumed that he knew the statutory and accepted meaning of the word “ issue, ” but in addition to this, he had himself been successful counsel in the case of Parker v. Carpenter, supra, where the question was decided that an adopted child was not a child within the meaning of a will. He argued this point extensively in his brief. The only reasonable conclusion, that this rule remain fixed in his mind thereafter, is further confirmed by a letter he wrote the trustees under the will on June 29, 1937, less than three weeks after the adoption of his daughter Pearle, a defendant and claimant in this case, upon June 11, 1937. In his letter he cited the Parker case and concluded that his adopted daughter clearly could not take under the will.

In summary upon this phase of the case, it appears that the draftsman, well acquainted with the accepted statutory meaning of the word “ issue, ” used it in that sense as expressing the intent of the testatrix. It is not to be assumed that her wishes were not conveyed to her son-in-law upon the vital subject of her will or that he failed to properly express them. See Amoskeag Trust Co. v. Haskell, 96 N. H. 89, 92. In any event, in the circumstances here the words possessing a well-known meaning must be interpreted in this sense as expressing the testatrix’s intent in the absence of a contrary intention manifested in the will. Leonard v. Stanton, 93 N. H. 113; Mahoney v. Grainger, 283 Mass. 189; Annot. 90 A.L.R. 2d 924, 939. Had her desire been to benefit adopted children, it could easily have been made to appear. For example, in Sylvester v. Newhall, 97 N. H. 267, the testatrix was careful to have inserted a provision that her step-daughter was to be treated “ as if [she] were a natural child of mine. ” Id., 271. The Court held that the step-child should be included under the [332]*332word “ issue ” because of the specific direction in the will. However, the opinion (page 271 ) reaffirmed the established law that issue ordinarily means “the [testatrix’s] lineal descendants.” It then cited approvingly Morse v. Osborne, 75 N. H. 487, 488, and Kimball v. Penhallow, 60 N. H. 448, 451. Sylvester v. Newhall, 97 N. H. 267, 271.

In the Morse case, where in order to reach its decision the question whether an adopted child was issue had to be resolved, the court stated unequivocally: “In common understanding, the word [issue] includes natural descendants and not children by adoption.” Id., 488. It cited approvingly the Kimball decision.

The defendant Pearle freely concedes that the weight of authority is against her position. Annot. 86 A.L.R. 2d 12, 80. See Merrow v. Merrow, 105 N. H. 103, 106. In fact, when, as in the present instance, she was adopted after the testatrix’s death, only a small minority would support her position. Annot. 86 A.L.R. supra, pp. 82, 83.

However, she attempts to avoid the implications of this situation by asserting that the will shows no intent to “benefit only those persons related to her [the testatrix] by blood.” It is true that the testatrix made specific bequests to her sons-in-law and provided that if her son Alonzo should marry, his wife should share in the income of the trust if she survived him. She also used the word “issue” apparently as referring to both grandchildren and great-grandchildren and directed that after the termination of the trust, the members of the second generation should take per capita and those of the third, per stirpes.

We do not find these provisions furnish significant support to this defendant. Never in the will is the word “ children ” used except in regard to the testatrix’s own children. The constant reference, aside from the bequests to her immediate in-laws, is to issue, and as we have said before, issue means lineal descendants, which would include natural children, grandchildren, and great-grandchildren (RSA 21:20) but not adopted children. Morse v. Osborne, 75 N. H. 487, 488. See Parker v. Carpenter, 77 N. H. 453.

In this situation, the claimant’s argument is not persuasive that the will showed an intent to use issue as having an uncommon rather than the statutory meaning. RSA 21:20. It appears that the testatrix intended to benefit her sons-in-law and in the event her son should marry, her daughter-in-law, but thereafter [333]*333her bounty was to be limited to the issue of her own children, or in other words their natural children. Since she had three children and as it was possible though improbable that her daughter Laura, wife of Albert H. White, might have a child, we perceive in these circumstances no sufficient reason for any conclusion that the testatrix intended to benefit adopted children. We are therefore unable to accept the position taken by the defendant that the word “ issue ” was used so loosely as to furnish a basis for assuming a positive intent to include adopted children.

The defendant finally urges that, at the worst, no contrary intent appears in the will, and therefore the word “ issue ” should include her as an adopted child. In so doing, she relies upon the policy expressed in our adoption statute, RSA ch. 461, which is substantially unchanged from that in force when the will was drawn. P. L, c. 292. The pertinent portions of this law provide that an adopted child should be the child of the adopting parents “to all legal intents and purposes” (RSA 461:5 (supp)) and for purposes of inheritance. RSA 461:6. She also cites authorities from other jurisdictions in support of her proposition, including Sewall v. Roberts, 115 Mass. 262; In re Coe, 42 N. J. 485; 43 Mich. L. Rev. 705, 710, 901.

At the outset, it should be observed that while the policy of RSA ch. 461 is to treat an adopted child as nearly as may be to a natural child, there is not the slightest intent evinced that this policy should supersede the wishes of the testatrix. This, as we have repeatedly held, is the touchstone of our law as to the interpretation of wills. Merrow v. Merrow, 105 N. H. 103, 106.

We agree with the opinion in Morse v. Osborne, 75 N. H.

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Amoskeag Trust Co. v. Preston
222 A.2d 158 (Supreme Court of New Hampshire, 1966)

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Bluebook (online)
222 A.2d 158, 107 N.H. 330, 1966 N.H. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amoskeag-trust-co-v-preston-nh-1966.