Burke v. Millikin

45 A. 401, 69 N.H. 501

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1898
• Status: Published

Opinion

Pike, J.

1. “ There are duties as well as rights incident to every estate for life which the tenant thereof is bound to observe.” 1 Wash. R. P. (5th ed.) *95. They must pay the customary taxes assessed upon the premises (Bodwell v. Nutter, 68 N. H. 446, 448, and cases cited), and use ordinary care to prevent the buildings from goiBg to decay. Wilson v. Edmonds, 24 N. H. 517, 545; Peirce v. Burroughs, 58 N. H. 302, 304. The devise to Hannah of a “ life lease ” of the homestead, “ thereby intending to give the occupancy, use, and control of said premises ” during her life, gave her an estate for life (McClure v . Melendy, 44 N. H. 469, 471; Wood v. Griffin, 46 N. H. 230, 234) which carried with it all the burdens of such an estate, notwithstanding the expression “ without rent or payment of any kind except taxes to my estate during her life.” Exempting the life tenant from liability to pay rent, or to make any other payment to the estate, did not exempt her from making necessary repairs upon the property and preventing waste; and there is nothing in this expression which makes her duties any loss than they would have been had it been omitted. She is to perform the duties of a life tenant, and must therefore make the necessary repairs at her own expense.

2. Harriet, Abbie, and Helen take nothing under the will. The language used by the testator in the last sentence of clause eleven is general in its nature. The names of his “ legal heirs ” are not mentioned or enumerated. Evidently, it did not occur to him, when this clause was framed, that the words here used included those to whom he did not wish to leave any of his estate, — those that were “ well provided for.” He wished to leave Hannah an estate for life, and, in a general way, desired the remainder “ to become the property of his legal heirs.” The individuals who composed his “ legal heirs ” were not then before his mind. In the twelfth clause he divided the remainder of his estate among objects of his bounty whom he specifically named, and this undoubtedly called to mind the financial condition of his sister Harriet and his two nieces, Abbie and Helen, the daughters of his brother Elbridge. He then recognized that they were “well provided for” and concluded to leave them nothing. To his mind, it appeared that they had property enough, and he used language in the thirteenth clause to express his intention in regard to them, concerning which there can be no question.

Case discharged.

All concurred.