4 A. 569 | N.H. | 1885
In the will of Eliza Bixby, which is referred to in the case, besides certain specific bequests of chattels, the following items appear:
Five. "It is my wish and will that no part of my personal property shall be disposed of by sale."
Seven. "I give and bequeath unto my adopted son, Edwin R. Davenport, of South Newbury, Vt., the sum of five hundred dollars in money."
Item eight devises the testatrix's homestead to trustees to apply the income to the support of John and Elizabeth Bixby for life, and at their decease to the support of some worthy person or persons, whom they may nominate, in the New Hampshire Centennial Home for the Aged in Concord.
After satisfying the specific bequests of personal property, the defendant, who is administrator with the will annexed, had not sufficient personal estate with which to pay the debts and expenses of settlement, and by license of probate court has sold the real estate. The plaintiff claims satisfaction of his legacy of $500, given in item seven of the will, from the balance of the proceeds of the real estate. If his legacy cannot be satisfied in this way, he claims the whole remainder of the estate as his[.]
In the construction of the will the intention of the testatrix *543
found by competent evidence must govern. Rice v. Society,
At common law a specific bequest or devise will not be charged with the payment of a general pecuniary legacy, nor abated in favor of a general legatee, unless such appears to have been clearly the intention of the testator. 2 Jarm. Wills 608; 2 Redf. Wills 462, 549; 2 Williams Ex'rs 1223; 1 Roper Leg. 191. And the legislature could not have intended by any enactment to change the common law in this respect without the clearly expressed language of a statute for that purpose. By Gen. Laws, c. 203, s. 13, it is provided that real and personal estate, not specifically devised or bequeathed, shall be first liable to the payment of the legal charges against the estate and legacies given by the will and to make up the share of any after-born child, or of any child or issue of a child not provided for in the will; and by section 14 of the same chapter, if the unbequeathed and undevised property is not sufficient, that which is devised and bequeathed is made liable for the purposes named in section 13. There is nothing in the language of these sections showing that a specific legacy or devise is to be diminished or exhausted in satisfying a legacy not specific.
The true construction of these sections is found by reference to other existing statutes upon the same subject. Section 15, c. 196, *544 provides for the order in which demands against the estate shall be paid, and shows that existing and established priorities were not changed by anything in sections 13 and 14; and c. 196, s. 6, providing that personal property specifically bequeathed should not be sold if not needed for the payment of debts, makes it plain that specific bequests and specific devises, which have not been made inferior to specific bequests of personal property, cannot be charged with the payment of general pecuniary legacies. In the revision of 1842, when sections 13 and 14 first appeared in that form, the commissioners in their report did not indicate any purpose to change the existing law upon the subject; and the universal understanding and practice since that time are proof that, in that revision, the legislature did not intend to so far change the common law as to require a pecuniary legacy to be wholly or partly paid out of specific legacies and devises. The change of the real estate into money by the administrator's sale did not destroy the character of the fund, nor impair the right of the beneficiaries beyond the payment of debts and expenses.
If the plaintiff were the testatrix's son, he would not take the whole estate merely because his legacy failed. "Any child * * * omitted or not provided for in the will," in c. 203, s. 13, is the same as "every child * * * not named or referred to in his will, and who is not a devisee or legatee." Gage v. Gage,
Case discharged.
BINGHAM, J., did not sit: the others concurred.