Hatch v. Partridge

28 N.H. 83

• Court: Superior Court of New Hampshire
• Decided: December 15, 1853
• Status: Published

Opinion

Gilchrist, C. J.

The petition for partition, which was the foundation of the proceedings in the court of probate, is not given in the case, and therefore we are unable to say what effect, if any, the partition may have upon the title of the parties in interest. We shall therefore confine ourselves to considering what is the proper construction of the will.

By the will, the devisees were made tenants in common. The devise to Leonard and Alpha was on condition that they should take Ira and carry on his share, and see that he had his support out of it during his natural life.

They had, then, the right to the possession of it during his life. They were bound only to furnish him a support. They could not convey his interest, but only their own.. Leonard Hatch undertook to convey the fee, to one third of which he had no title, and a recovery was rightfully had against him by Stephen Partridge, for the breach of his covenants.

Having, by the will, an interest in Ira’s share during his life, and a right to the possession and profits of it, they could convey that interest, subject to whatever charge upon it was created by the will. They were bound only to support him, and it was a matter indifferent to him, and in no way affecting his interests, where they obtained the funds for that purpose. The will did not require that the specific crops obtained from his share, should be appropriated to his support, for a portion of the produce must probably be sold, in order that he might receive any benefit from it. As long-as he is supported, every object contemplated by the will is attained, and it does not appear that the devisees have ever failed to support him.

The will did not intend that Ira Hatch should be entitled to the possession of any part of the land, so long, at least, as the condition stated in the will is complied with. If he has no cause of complaint against his brothers, it is not a matter in which he has any interest, whether they or the defendants are in possession of the land. If upon another trial the proceedings in relation to the partition should come before us, it can then be determined whether the partition can have the effect of enabling a suit to be brought in his name, so long as there is no neglect on the part of the devisees. As the case now stands, the action cannot be maintained, but, as all the facts are not before us, we shall not render any judgment.

Case discharged.