## Facts

- Elizabeth A. Luce executed a will leaving $100 to her husband in lieu of other rights and devising the residue “in equal shares” to her daughter, Jessie Evelyn Starkey (later Evelyn S. Deming), and her sister, Clara E. Woods.
- The will added: “In case of the death of either ... I devise the share of such decedent to the survivor.”
- Luce died in 1954; both Deming and Woods survived her.
- Woods later died in 1956, leaving heirs Florence Cram and Doris Cocco.
- As administratrix of Woods’s estate, Deming initially inventoried Woods’s estate as including an undivided one-half interest in certain Keene real estate that had been part of Luce’s residue.
- Deming later claimed the inventory was erroneous and sought a declaration that, under the survivorship clause, she took the entire residuary real estate upon Woods’s post-testatrix death.
- Cram and Cocco claimed Woods’s one-half interest vested at Luce’s death and passed through Woods’s estate to them.

## Issues

1. Whether the will’s survivorship clause referred to the death of a residuary devisee at any time (including after the testatrix’s death), thereby divesting a share upon the devisee’s later death.
2. Whether, instead, each residuary share vested in fee at the testatrix’s death, with survivorship operating only as a substitution if a devisee predeceased the testatrix.

## Decision

- The New Hampshire Supreme Court held that Woods took a vested one-half fee interest in the residuary real estate at Luce’s death.
- The court construed the survivorship language to apply only to the death of a devisee during the testatrix’s lifetime.
- Because Woods survived Luce, Woods’s vested one-half interest passed at Woods’s death to her heirs, Cram and Cocco.
- Deming’s claim to the entire property as “survivor” was rejected.

## Legal Principles

- Interests under a will are presumed to vest at the testator’s death unless the will clearly indicates a different time or a condition of survival beyond that point.
- Words of survivorship in a residuary clause are ordinarily construed to address the contingency of a devisee dying before the testator, not to create a continuing right of survivorship that divests a vested share after the testator’s death.
- The phrase “in case of the death of either” commonly signals a substitutionary intent, because death is certain and the conditional phrasing is meaningful only if tied to a predecease contingency.
- Constructions that create extended uncertainty in estate administration, particularly for personal property distribution, are disfavored absent clear testamentary direction.
- Omission of other relatives from a will does not, without more, overcome standard construction canons to convert a vested gift into a contingent or defeasible one.

## Conclusion

The court ruled that the residuary devises vested in equal one-half shares at the testatrix’s death, and the survivorship clause operated only if a devisee died before the testatrix; therefore, Woods’s one-half share passed to her heirs rather than to Deming as surviving residuary devisee.


In re Woods' Estate, 102 N.H. 59, 149 A.2d 865 (N.H. 1959)