Sleeper v. Kelley , 65 N.H. 206 ( 1889 )

It is not a question of the application of payments, but of the testator's intention — What of his demands against the defendant did he intend should be satisfied by his gift? It must be presumed that he knew the amount and character of the debts due to him. If the legacy was equal to or greater than the defendant's indebtedness, the testator's intention that the defendant should pay nothing would be certain. Inasmuch as the legacy is insufficient to satisfy the whole amount of the testator's demands, his intention that the defendant should pay the remainder is equally certain. In order that this intention may be effectuated, equity will apply the legacy first in satisfaction of the defendant's unsecured indebtedness. Courtenay v. Williams, 3 Hare 539, 553, 554; Poole v. Poole, L. R. 7 Ch. 17; Cummings v. Bramhall, 120 Mass. 552.

The plaintiffs may amend their pleading by filing a bill in equity (Metcalf v. Gilmore, 59 N.H. 417), rendering it unnecessary to determine whether the same result may be reached in the action at law. Mahurin v. Pearson, 8 N.H. 539, 542; Concord v. Pillsbury, 33 N.H. 310, 317.

Case discharged.

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