Petition of Carlton

104 A. 246 | N.H. | 1918

"The word `devise' is more specially appropriated to a gift of lands, and every person taking an interest in the produce of real estate directed to be sold, is, strictly speaking, a devisee, and not a legatee. . . . But the terms are used indifferently; legatees may take under a bequest to `all my devisees above named.' . . . And the word `legacy,' may be applied to real estate, if the context of the will show that such was the testator's intention." Ladd v. Harvey, 21 N.H. 514, 528; Webster Dict., Title, Bequeath; Bouv. Law Dict., Title, Legacy. As to the land in Alton, technically Edward E. Carlton is a devisee and not a legatee, but using language with the same precision he is one of "the legatees of this will" because of the gift to him of ten thousand dollars and other personal property. His share is proportioned not by the amount devised or bequeathed to him but by "the amount already given" to him. "The word `give' is of the largest signification, and is applicable as well to real as personal estate." Hooper v. Hooper, 9 Cush. 122, 129. The gift by the third clause to Edward E. Carlton included both real and personal estate and the amount given him is the total value of the gift. So of the gift of two classes of personal property to Alice S. Furber by the sixth clause, cash and the annuity policy. The total value of her gift is the amount given to her. It is not probable the testatrix understood the shade of difference in meaning which may be found between the terms "legatee" and "devisee." But the will is evidence that the scrivener was skilled in legal phraseology. In the two cases where a gift of real estate is made, clause third, above considered, and the residuary clause, care was taken to insert the appropriate word, "devise," for a gift of real property by will. It is probable if the testator had intended to limit the division of the residue by the amounts of her gifts of personal estate apt words would have been used to express such intention. For the same reason it is clear that the amounts already given by the will were not understood to be limited to cash gifts. The executors are advised that the value of the property given to Edward and Alice other than cash should be included in ascertaining the amount already given them by the will.

By "inventory value" in the question submitted is understood the appraisal made of the property scheduled in the inventory returned by the executors to the probate court. P.S., c. 189, ss. 1, 2. In Seavey v. Seavey, 37 N.H. 125, this appraisal was held admissible in controversies between strangers to the appraisal. The conclusion that such appraisal is admissible at all has since been criticised, if not expressly overruled. Derry v. County, 62 N.H. 485, 487, 488; Concord Land and Water Power Co. v. Clough, 69 N.H. 609, 610. But in Seavey v. Seavey the appraisal though considered admissible prima facie evidence was said not to be conclusive. It is not conclusive of value upon the assessment of the inheritance taxes. Laws 1905, c. 40, s. 13; S.P.S., p. 99. No ground is perceived upon which this appraisal can be held conclusive upon the distributees of this will in determining their several shares in the residuum. If there is controversy the value should be determined in some proceeding to which all interested are parties.

Case discharged.

All concurred.