23 N.H. 149 | Superior Court of New Hampshire | 1851
The question, in this case, is whether, upon a proper construction of the will, the debts and legacies aro to be paid out of the property devised to the five heirs of Thomas Wallace, of whom the appellants are two, or whether they are chargeable upon all the property devised by the residuary clauses.
The testator first makes a provision for his wife, and then bequeaths certain pecuniary legacies to three of his relations. He then gives to Mrs. Patterson, one-half the residue of his property, real and personal. The other half was then to be disposed of, and one-half of this, or one-fourth of the whole residue, he gives to Robert Wallace and Mrs. Darling, in the distribution of which Robert Wallace is to have two-thirds and Mrs. Darling is to have ono-tliird. All the residue of his property, being one-fourth part of the whole residue first named, after, paying debts and legacies, he gives to the five heira of Thomas Wallace. It was the opinion of the court of probate that the testator intended to distribute the gross residue of his estate between Mrs. Patterson, Robert Wallace and Mrs. Darling, before the pay-
The question is not raised, by the parties, whether the lega cies of money are mere pecuniary legacies, and, as such, bound to contribute to the burdens of the estate, if the words relating to the payment of the debts can be applied to them; or whether they are specific bequests, and not to abate until the other devises and legacies have been exhausted. But the court is inclined not to construe a legacy as specific, unless clearly so intended. Kirby v. Potter, 4 Ves., 752; Innes v. Johnson, 4 Ves., 568 ; Webster v. Hale, 8 Ves., 413. And these legacies are not specific, but common pecuniary legacies. Lupton v. Lupton, 2 Johns., Ch. 622 ; Wilson v. Brownsmith, 9 Ves., 180 ; Lambert v. Lambert, 11 Ves., 607. But from this remark must be excepted the legacy of “ five hundred dollars in personal property such as she may select,” and that of “ the pew in the congregational meeting-house.” By our law the executor, except where he is the residuary legatee, is bound to return an inventory of the personal property, the value of which is estimated by appraisers. The personal property does not, as in England, go to the executor, but, if undisposed of by the will, descends to the heir at law. As the personal property is all inventoried, and belongs to the estate, after the death of the testator, a reference to it, in connection with a legacy, would seem to make the legacy more specific than it might be considered by the use of the same words in England. Many of the English cases, therefore, relating to the distinction between specific and demonstrative legacies, are not so applicable here as they would be, were there not not this difference in our laws. It is not stated, in the case, that the testator left personal property to the amount of five hundred dollars, or a pew in the congregational meeting-house, but there is no reason to doubt the fact, any more.than that he died seized of certain real estate described in the will.
The distinction between these two kinds of legacies is often very nice. White v. Winchester, 6 Pick., 54; and the cases
In the case of Kirby v. Potter, 4 Ves., 748, the testator bequeathed a legacy “ out of my reduced bank annuities,” and the legacy was held not to be specific. But Lord Alvanly said, “ if this legacy had been expressed thus, ‘ in my reduced bank annuities,’ I could not have considered that the testator meant anything but an identical part of that corpus.”
In Richards v. Richards, 9 Price, 219, the testator bequeathed to his eldest son “ such part of my stock of horses which he shall select, to be fairly valued and appraised to the amount of ¿6800,” and the legacy was held to be specific. This case is much in point, and is consistent with the meaning of the present testator, which we think was, that his wife should select articles of personal property from the inventory, according to the appraisal, to the amount of five hundred dollars; a construction which, we think, is borne out by the authorities.
The devise of the lands to the wife for her life was also specific. Every gift of land, even as a general residuary devise, is specific. Wyman v. Brigden, 4 Mass. Rep., 154; 7 Vesey, 147, 399; Broome v. Monck, 10 Vesey, 605 ; Milne v. Slater, 8 Vesey, 305 ; Nannock v. Horton, 7 Vesey, 399.
The question is not whether some portion of the real estate included in the residuary devises of the will, that is, the devise to the appellants, is not chargeable with the payment of the debts, but whether all the estate, included in all the residuary clauses, is not equally charged, and whether the whole of the residue does not constitute a fund for such, payment. By the last clause in the will, the testator devises all the residue of his
We think, however, that the intention of the testator, which, where the rights of creditors do not intervene, must be the guide of the court, is sufficiently clear that the pecuniary legacies, and all the legacies preceding the residuary devises, were to be exempted from the burden of the debts. In this-respect, the case is similar to that of Lee, appellant, 18 Pick., 285. In that case, the testator bequeathed his personal estate, not by a residuary clause, but as an absolute bequest, and devised property in trust to his executors, and directed them, out of the proceeds, to pay his debts. It was held that this manifested a clear intention of the testator to give the personal-property to the legatee, his wife, exempt from the liability to pay debts. So in Bardwell v. Bardwell, 10 Pick., 19, the testator gave to his wife one-third of his personal estate. He then gave to his sons all his personal estate, after deducting what he had given to his wife “ and paying my debts.” It was held that these words made a charge upon the bequest to the sons, and that they should apply the amount of property given them in payment of the debts, before they should take any part of it for their own use. In that case, there was personal property enough to pay the debts, without resorting to the third, given to the wife, which we understand to be the fact in the present case.
There is a rule in the construction of wills, that every testator is to be considered as intending a benefit to the object of his gift. This rule lies at the foundation of the decisions which hold that where there is a devise of lands, and a condition upon the devisee to pay a sum of money, the devise gives a fee without words of inheritance. The principle on which the rule is founded was recognized as early as Collier’s case, 6 Term Rep., 16 ;
It is also held that a testator is n'ot to be supposed ignorant of the state of his property, unless it appears upon the will to be so. Hotham v. Sutton, 15 Vesey, 328; Legge v. Asgill, 1 Turn. & Russ., 268, (n.)
These two principles will aid us in ascertaining the meaning of the testator. And it is to be noticed that there is nothing in the will to show that the payment of the debts was to be charged upon the property devised to the appellants, except the local position of the words. The appellants, were as nearly related to him as the devises mentioned in the second residuary clause, and there is nothing in the case leading us to suppose that he intended to benefit one elass of residuary devisees, at the expense of another. Rut if the construction of the court of probate be adopted, there will be nothing left for the appellants, after paying the debts and legacies. We must suppose that the testator was acquainted with the condition of his property, and knew that one fourth part of the residue would not be sufficient to pay the debts and the legacies, and we cannot presume that he would have made a bequest which he knew, at the time, would be nugatory. It is, we think, no more than a rational exposition of the will, it is only to give to it such a construction as will best carry out the probable intention of the testator, to hold, that as no class of the residuary devisees seems to have a stronger claim in equity than the others, so all should stand on equal grounds, and that the payment of the debts and legacies should be a charge upon all the residuary estate, and not exclusively upon the share devised to the appellants. The decree of this court, therefore is, that the decree of the court of probate be reversed, that the appellants recover their costs, and have execution therefor against the property of the testator, and that the case be remitted to the court of probate for further proceedings.
