Hoyt v. Hoyt , 69 N.H. 303 ( 1898 )

The question is whether the plaintiff's legacy of $1,000 is a charge upon the real estate devised to the defendants. The real estate is not, as of course, charged with the payment of legacies. It is never so charged unless the testator intended it should be, and that intention must be either expressly declared, or fairly and satisfactorily inferred. Lupton v. Lupton, 2 Johns. Ch. 614, 623. Real estate specifically devised is not charged with a general pecuniary legacy given in the same will when there is nothing to show that such was the intention of the testator. Davenport v. Sargent, 63 N.H. 538. If the testator desired to make the devises to his sons conditional upon their payment of his daughter's legacy, and has furnished sufficient competent evidence of that intention, the defendants are liable in this action.

If the devises of real estate to the sons had been unconditional, the provisions of the will would indicate that the testator intended to make the payment of the legacies a charge upon the whole estate. But the homestead farm was devised to James E. Hoyt, subject to the suitable support of his mother, "on condition that he shall not sell or dispose of the same until he arrives at the age of fifty years"; and the Marston place was devised to Elihu B. Hoyt, "on condition that he shall not sell or dispose of said property until he arrives at the age of fifty years, and that none of said property shall pay any of his debts contracted before that time." These conditions attached to the devises of the real estate show that the testator did not intend that it should be charged with the payment of the legacies named in the will, for he has provided that it should not be sold until his sons arrive at the age of fifty years, while the legacy to the plaintiff was ordered to be paid immediately after his decease.

The personal estate consisted chiefly of two savings bank deposits, aggregating $1,992.43. It is reasonable to conclude that the testator supposed this sum would be amply sufficient for the payment of legacies and all expenses of administration, and had no purpose of charging the real estate with the payment of the legacies.

Judgment for the defendants.

All concurred.