Bills v. Putnam

• Court: New Hampshire Supreme Court
• Writing for the Court: CLARK, J.
• Citation: Bills v. Putnam, 15 A. 138, 64 N.H. 664 (N.H. 1888)
• Decision Date: 19 July 1888
• Parties: BILLS v. PUTNAM et al.

15 A. 138

64 N.H. 664

BILLS

v. PUTNAM et al.¹

Supreme Court of New Hampshire. Hillsborough.

July 19, 1888.

Bill in equity for the construction of a will. Facts found by a referee. Lucy C. Bills died September 28, 1882, leaving a will dated April 14, 1865, whereby she gave to her two daughters all her "wearing apparel, household furniture, and personal property of every name, nature, and description, to be equally divided between them;" to two grandsons, $200 each; and to a son, $5; with a residuary clause as follows: "And as to the rest, residue, and remainder of my property, it now being in real estate, I give, bequeath, and devise to my son, Jabez F. Bills, my daughters, Lucy A. M. Putnam, Betsey J. Patterson, and my grandson George F. Bills, to be equally divided among the four; and for the better settling and dividing of said property among the devisees, I do authorize and empower my executor" "to sell at public auction or private sale, as he may think best, together or in such parcels, as he may think best, all the real estate of which I may die seized, and from the proceeds thereof pay all my funeral charges, just debts, and erect suitable grave-stones at my grave, divide my personal property between my two daughters as above mentioned, pay the money legacies to the persons as above mentioned, pay all the necessary expenses of administering, selling, disposing of, deeding, and conveying said real estate." There was a codicil, dated January 7, 1878, whereby the legacy to one of the grandsons was reduced to $50, and to the other wholly revoked. At the time the will was made the testatrix owned real estate worth about $2,900, but no personal property, aside from wearing apparel and household furniture, except one promissory note for about $40. Before her death she sold a large part of her real estate, and invested the proceeds which have come to the hands of the plaintiff in promissory notes and deposits in savings banks. From the terms of the will and the foregoing facts, the referee found that the intention of the testatrix was to give her two daughters, Lucy A. M. Putnam and Betsy J. Patterson, all the wearing apparel, household furniture, and other personal property of like nature which she possessed at her decease, but not the money she had on hand or invested; and to her residuary legatees all the balance of her estate, after paying therefrom the money legacies mentioned in the will and codicil, her debts, expenses of administration, etc.; and held that the balance of money now in the plaintiff's hands as executor should be divided equally between Jabez F. Bills, Lucy A. M. Putnam, Betsey J. Patterson, and George F. Bills.

R. M. Wallace, for plaintiff. C. W. Hoitt, for defendants.

CLARK, J. 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 $2,900, 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 $40. 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 $200 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...