Summary of Ulrickson v . Erickson, 86 N.H. 247, 166 A. 273 (1980)

Facts: Ms. Ulrickson died testate in 1976. Her will was drafted in 1971 leaving $1K to each niece and nephew, including two by marriage.  The residue was to be given to her brother M. Hovland and sister R.Helger, but in the event either predeceased, then to the other surviving brother and sister.  Both Holvand and Helger were alive when the will was drafted, they both died before the testatrix.  Hovland with issue.  In 1971 the other two siblings were deceased, but with issue.

Issue: Whether Minnesota’s anti-lapse statute applies where the residuary estate is given to a brother and sister, “and in the event either one of them shall predecease. . . then to the other surviving brother or sister,” where both brother and sister predecease the testatrix?

Holding: The words of survivorship can be effective ONLY if there are survivors.  Since there are no survivors, the anti lapse statute is free to operate.

Procedure: Will contest brought in probate court which held the anti-lapse statute applicable; District Court Affirmed;  Supreme Ct. Affirmed.

Rule: The intent of a testator as expressed controls the legal effect of dispositions.  A will is construed to pass all property acquired after execution.  ANTI-LAPSE.  If a devisee is a grandparent or lineal descendent of a grandparent of the testator is dead at the time of execution, or fails to survive the testator, the surviving issue of the deceased devisee take, and if all of the same degree of kinship, they take equally, but if unequal the more remote take by representation.

Rationale: It is apparent that the law prefers testacy and that the anti-lapse statute applies UNLESS a contrary intention is indicated by the will. Testatrix did not contemplate that both her younger brother and sister would predecease her. The residuary clause contains no instructions for such an event. The words of survivorship can be effective ONLY if there are survivors.  Since there are no survivors, the anti lapse statute is free to operate.

Appellants: testatrix expressed an intention contrary to the anti lapse statute by including the words “and in the event that either one of them shall predecease me, then to the other surviving brother and sister.” Thus an absolute condition of survivorship to receive the residue.