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• Title: Merchants National Bank v. Delana B.
• Author : Supreme Court of New Hampshire
• Release Date : January 27, 1953
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 63 KB

Description

The question transferred in effect asks us to decide who is entitled to how much of what trust moneys. This question depends
in part on whether clause sixth of the will violates the rule against perpetuities. At the threshold of the dispute, however,
is the issue whether the construction of this will in the case of In re Harrington Estate, 97 N.H. 184, is res judicata of
the present claim that clause sixth violates the rule against perpetuities. We consider this preliminary issue first. The proponents of the will maintain that the Bean-Quirin interests are precluded from urging the invalidity of any part of
the will under the doctrine of res judicata and rely on McAllister v. Elliot, 83 N.H. 225. That case is similar but distinguishable
because of important factual differences. In the first McAllister case ( McAllister v. Hayes, 76 N.H. 108) "counsel on both
sides... made repeated references to the rule against perpetuities." 83 N.H. 225, 228. Furthermore the opinion in the second
McAllister case states that the silence of the court relative to the rule against perpetuities "... is to be explained rather
upon the ground that the inapplicability of the rule to any of the devises in the will was clear." 83 N.H. 225, 229. When
In re Harrington Estate, 97 N.H. 184, was argued and decided there was no reference to the rule against perpetuities in the
reserved case, the oral arguments, or the written briefs and it was not mentioned in the opinion. Bean and Quirin were not
parties. The issue of the validity of clause sixth of the Harrington will with relation to the rule against perpetuities was
neither litigated nor determined in the prior action and is not res judicata of the issue in this proceeding. Gagnon v. Pronovost,
97 N.H. 500.

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