Bills v. Putnam , 64 N.H. 554 ( 1888 )

The question in this case arises from a change in the condition of the property after the execution of the will. There is no evidence of any change in the relations of the testatrix and the residuary legatees to indicate or account for an intention on her part to change the apportionment of her property between them. The evidence of a change of purpose in its distribution is furnished solely by the fact of a sale of a large portion of her real estate by the testatrix, and allowing her will to remain unchanged. It is not reasonable to believe that the testatrix, without cause, intentionally changed the disposition of her property so materially as to reduce the shares of two of the residuary legatees to one fourth of the amount provided for by the will, as the property then was, with a corresponding increase to the shares of the other two. The absence of evidence showing a motive for changing the operation of the will upon the property, is evidence upon the question whether any change was intended by the testatrix.

It is to be assumed that the testatrix understood the terms and conditions of the will and their legal effect when it was executed. Its provisions, applied to the property at that time, show an intention to divide the bulk of it equally between the four residuary legatees named in the will. Her property then consisted of real estate of the value of twenty-nine hundred dollars; her wearing apparel, household furniture, and like property, which she was then using in her daily life; and a note against a son-in-law for about forty dollars. The will provides that the wearing apparel, household furniture, and personal property of every name, nature and description, be equally divided between the two daughters; that legacies of two hundred dollars each be paid to two grandsons, and a nominal legacy to a son; and that the rest of the property, it now being in real estate, be equally divided between the two daughters, the plaintiff, and a grandson. By the subsequent sale of a large part of the real estate it was converted into personal estate, and consequently transferred from the operation of the residuary clause to the special bequest to the daughters, unless the words "personal property," as used in the bequest to the daughters, are understood as used in a special and restricted sense. The determination of the question raised depends upon the construction to be given to the phrase "personal property." If the language is susceptible of more than one construction, in what sense did the testatrix use it?

The interpretation of a will is the ascertainment of the testator's intention. That intention is gathered not only from the words of the particular clause under construction, but as well from the language of the whole will, from the relations of the testator to the persons who are the objects of his bounty, and from surrounding circumstances. Kennard v. Kennard, 63 N.H. 303, 310. But little aid is to be derived from a resort to formal rules, or a consideration of judicial determinations in other cases apparently similar. It is a question in each case of the reasonable interpretation of the words of the particular will, with the view of ascertaining through their meaning the testator's intention. Robison v. Portland Orphan Asylum, 123 U.S. 702, 707; Bosley v. Bosley's Executrix, 14 How. 390, 397.

The term "personal property," in its broadest legal signification, includes everything the subject of ownership not being land or an interest in land, as goods, chattels, money, notes, bonds, stocks, and choses in action generally. In the ordinary and popular understanding, however, it is frequently used in a more restricted sense, as including goods and chattels only, and embracing such movable and tangible things as are the subjects of personal use, and it is at least doubtful whether the term personal property is generally understood to include money, notes, and choses in action. In its popular meaning it is commonly applied to goods and chattels. It is sometimes used in wills with similar import, as where a testator bequeathed to his wife "five hundred dollars in personal property such as she may select." Wallace v. Wallace, 23 N.H. 149.

The will furnished evidence that the testatrix understood and used the term "personal property" in this restricted sense. The language of the bequest to the daughters is "all my wearing apparel, household furniture, and personal property of every name, nature and description." In the construction of wills, as well as statutes, when certain things are enumerated, and a more general description is coupled with the enumeration, that description is commonly understood to cover only things of a like kind with those enumerated. This is because it is presumed the testator had only things of that class in mind. Given v. Hilton, 95 U.S. 591, 598. By this rule of construction the words personal property in the bequest to the daughters are to be interpreted as embracing only things of like kind with those enumerated. Benton v. Benton, 63 N.H. 289. If the language was intended to embrace everything except the real estate, the enumeration of the wearing apparel and household furniture was superfluous. A similar construction was adopted in Dole v. Johnson, 3 Allen 364, a case strongly resembling the case at bar, where the language of the bequest was "all my household furniture, wearing apparel, and all the rest and residue of my personal property," and it was held not to include money stocks, securities, or evidences of debt.

The language of the residuary clause is, "And as to the rest, residue and remainder of my property, it now being in real estate, I give . . ." The use of the phrase "it now being in real estate" is significant as being descriptive of the property upon which the testatrix then understood the residuary clause was to operate, and as emphasizing her intention that the property which was then real estate should be equally divided among the four residuary legatees, whatever its form or condition might be when the will took effect. The words "it now being in real estate" carry a suggestion of a possibility that the property might not be in real estate when the will became operative at her decease, and show that she did not understand that by the bequest of personal property any part of what was then real estate would in any event be included. The use of this language was consistent in the view that the testatrix understood the bequest to the daughters as including only her wearing apparel, furniture, and articles of like kind which she might have at her decease. It was unnecessary and meaningless if she understood and intended the bequest to the daughters to include everything but the real estate.

The provision of the will authorizing the executor, for the better settling and dividing of the property among the devisees, to sell all the real estate of which the testatrix might die seized, and from the proceeds to pay the funeral charges and debts, erect suitable grave-stones, "divide my personal property between my two daughters as above mentioned," pay the money legacies to the persons named, and the expenses of administration, furnishes evidence that the testatrix understood that the personal property to be divided between the two daughters included only the wearing apparel and furniture, and goods of like character. It is evident from this clause in the will that the testatrix intended and understood that the residuary legatees should receive not land but money, and that the real estate, when converted into money by a sale, would not pass to the two daughters under the special bequest of the personal property to them.

The language of the whole will, considered in the light of the circumstances under which it was made, the condition of the property, and the relations existing between the testatrix and the residuary legatees, indicates that the term "personal property" was used by the testatrix in the bequest to the daughters as embracing goods and chattels only, and not as including money and choses in action. In this view the sale and conversion of the real estate into money did not affect the disposition of the property under the will.

It is suggested that there is no question for the court in this case; that the interpretation of a will being the ascertainment of the testator's intention, which is a question of fact, and the intention of the testatrix being found by a referee, the court at the law term will not inquire into the correctness of the findings. Ordinarily questions of fact are not considered at the law term, but the fact of a testator's intention is ascertained by the interpretation of the will in the light of the surrounding circumstances, and the construction of written instruments being ordinarily a question of law, the finding of the referee is revisable by the court. The result reached by the referee, that the money now remaining in the hands or the executor should be equally divided between the four residuary legatees, is sustained.

Decree accordingly.

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