Davenport v. Sargent, 4 A. 569

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 found by competent evidence must govern. Rice v. Society, 56 N.H. 191, 197,198, 203; Brown v. Bartlett, 58 N.H. 511; Kimball v. Lancaster,60 N.H. 264. There are in the will no express words of intention to charge the real estate devised for a specific purpose with the payment of the pecuniary legacy of $500 to the plaintiff. The presumption is, that the testatrix did not intend that the general bequest should have any effect inconsistent with the specific devise of the land, or with the specific bequests of chattels, or with the direction that her personal property should not be sold, and no circumstantial evidence is offered to rebut that presumption, and the omission to offer it is affirmative proof sustaining it. It may often be assumed that a testator intends all his testamentary gifts of real and personal property shall be fully satisfied; and the amounts and kinds of his property at the time he gave directions for drafting his will, may be evidence on the question of his intention. Hoyt v. Hoyt, 85 N.Y. 142, 147. In this case there is a significant omission of evidence on the part of the plaintiff. He has not shown, nor offered to show, that the amount and kind of the testatrix's property, at the time she directed the will to be drawn, was such as to tend to show an intention that the plaintiff's legacy should be paid out of the realty specially devised for a different use and purpose. What effect such evidence would have it is not necessary to inquire. For aught that appears, the testatrix's property at that time would tend to show that she expected his legacy to be paid out of personalty, which she afterwards disposed of, leaving no evidence of a purpose to charge his legacy on the land specifically devised. 3 Jarm. Wills (5th Am. ed.) 424 n., 459 n.

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, 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, 29 N.H. 533, 543. The plaintiff was named in the will as a legatee within the meaning of the statute, and he cannot, because his legacy has failed, take something else not bequeathed to him. Much less can he take the whole estate. The defendants are entitled to the fund arising from the real estate without contribution to make up the plaintiff's general legacy of $500.

Case discharged.

BINGHAM, J., did not sit: the others concurred.