64 A. 19 | N.H. | 1906
"The situation of the testator, the surrounding circumstances, his family and relatives, the devisees and legatees, the nature, amount, and situation of his property, facts tending to place the court in the position of the testator, constitute evidence competent for our consideration upon the issue of what he meant by the words used." Stratton v. Stratton,
At the time of the testator's death, and when the will took effect, the condition of his estate was such that the value of the personal property he gave to his son was less than his indebtedness; and upon the theory that the debts were charged exclusively upon the personal property bequeathed to the son, the latter has declined to accept the same. There can be little doubt that the testator intended that this property to the extent of its value, if necessary, should be held for the payment of his debts. It would be unreasonable to assume that he expected his son to accept property under the will charged with the payment of debts in excess of its value. Ordinarily a testator is presumed to intend to confer a benefit upon his legatees. Currier v. Currier,
On the one hand it is claimed that the entire indebtedness is chargeable, not merely upon the personal property given to the son, but upon the life estate in the land devised to him, while upon the other hand it is insisted that the excess of debts should be paid out of the money deposited in the savings bank. If it is conceded that there may be some evidence inferentially supporting each of these contentions, neither seems to be in accord with the general purpose of the testator. In view of the condition of the estate, either construction, if adopted, would practically defeat his intention in a material respect. See Wallace v. Wallace,
Nor is there evidence that he understood the technical difference between specific and general or demonstrative legacies, or that he expected his testamentary intention would be ascertained by artificial rules of construction, of which he had never heard and had no knowledge. Sanborn v. Sanborn,
While the bequest of fifty dollars to Nellie Pike Hale, standing alone, might not indicate a purpose to give her anything of a specific character, but merely to authorize the payment to her of that amount derived from any property of the estate not specifically bequeathed, the fact that in the next clause he disposes of "all the rest of my money" is evidence that the legacy of fifty dollars related specifically to the same fund or subject-matter, and not to a general fund remaining upon the final settlement of the estate. It was not his purpose to leave a general fund, either for the payment of his debts or for the payment of his legacies. In connection with the affirmative provisions of the will, the absence of general residuary clause indicates under the circumstances an understanding on his part that he had disposed of his entire property by giving to the devisees and legatees distinct parts thereof, after the payment of his debts, and that a residuary clause would be inoperative and useless. It is more probable than otherwise that he intended the money legacies to be as specific as the other provisions of his will, and that in this respect all should have the same effect. Having a sum of money on deposit in the bank, no reason occurred to him why he could not give a part of it to one and the rest of it to another in the same way he might have given one sheep to one and the rest of his flock to another.
Since, therefore, the construction of a will is the ascertainment of the fact of intention from competent evidence, and not the' application of technical rules as legal tests, the indebtedness chargeable to the estate in this case, beyond the value of the personal property given to the son, must be borne pro rata by the devisees and legatees. P. S., c. 196, s. 14; Hall v. Smith, *539
Case discharged.
All concurred.