Wells v. Anderson

44 A. 103, 69 N.H. 561

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1899
• Status: Published

Opinion

Chase, J.

The defendants’ claim of title to the whole lot is based upon the inference, drawn from the form of the bequest to the plaintiff, that the testator intended the plaintiff should have only one dollar from the entire estate. It is certain that the testator did not intend to give the plaintiff more than one dollar by will, but it does not appear that he intended the plaintiff should not share with the other heirs in the undevised portion of his estate. A bequest of “ one dollar and no more ” is consistent with an intention to give that sum only by will, and to allow the legatee to take whatever other portion of the estate the law would give him. To prevent the plaintiff from having more than one dollar, it was necessary for the testator to make disposition of his entire estate ; he could not entrust the disposition of a portion of it to the provisions of the statutes, for they would give one third of such portion to the plaintiff, and one third to each of the two surviving children. If the testator understood that his use of the words, “ and no more,” would prevent the plaintiff from taking a third of the undevised portion, he must have understood also that this third would be left undis posed of either by the will or the statute. He certainly could not have understood that those words would devise it to the two surviving children. They are words of limitation and not of devise. See Denn v. Gaskin, Cowp. 657; Haxtun v. Corse, 2 Barb. Ch. 506, 521; Gallagher v. Crooks, 132 N. Y. 338; Nickerson v. Bowly, 8 Met. 424, 431, 432.

Considering that the testator’s language was used in the act of making a will, and giving the words their ordinary effect, it appears that he intended to bequeath only one dollar to the plaintiff, and to leave the Jack lot and other portions of his estate to be distributed among his heirs by operation of law. In this way the plaintiff acquired title to one third part of the Jack lot. P. S., c. 196, s. 1.

Case discharged.

All concurred.