Blaisdell v. Coe

• Decision Date: 06 December 1927
• Citation: 139 A. 758
• Parties: BLAISDELL v. COE et al.
• Court: New Hampshire Supreme Court

139 A. 758

BLAISDELL

v. COE et al.

Supreme Court of New Hampshire. Belknap.

Dec. 6, 1927.

Rehearing Denied Jan. 3, 1928.

Transferred from Superior Court, Belknap County; Oakes, Judge.

Proceeding by Bertram Blaisdell, executor, against F. Sumner Coe and another, for construction of the will of testator. Case transferred from superior court. Will construed, and case discharged.

Petition for the construction of the following clause of the will of Laura W. Coe:

"I give and bequeath and devise to F. Sumner Coe, brother of my late husband John Coe, all the real estate which I may own at my decease situate in * * * Center Harbor and Moultonborough, and the sum of one thousand dollars; also all articles of china, furniture, etc., in my possession which once belonged to the late John Coe's mother, and all furniture that may be stored in any house or building in Moultonborough or Center Harbor. * * * "

When the will was made, the testatrix owned in fee several parcels of real estate in the towns named. She later sold one to a residuary legatee, taking back a purchase price mortgage of $3,000. Also, when the will was made, Sumner owed her $1,000. Secured by a mortgage of real estate in Moultonborough, and, after the will was made, she conveyed to him one of her parcels, taking back a purchase price mortgage of $1,800.

The testatrix acquired from her husband his interest in a farm in Moultonborough which he had sold by written contract to one Ruiter. By the contract $2,500 was to be paid for the farm by installments, and a deed and mortgage back for the balance were to be given when $400 was paid. Although such payment was made, this was not done, but the contract remained in force, and Ruiter has always been in possession since the contract was made and as provided by it. At the death of the testatrix, the balance due from Ruiter was $1,200.

The testatrix was familiar with business matters, and had much experience in real estate transactions.

The questions whether the three mortgages with the benefit of the debts they secured and the Ruiter farm with the benefit of the purchaser's obligation passed to Sumner under the clause quoted or were a part of the decedent's estate not specifically bequeathed or devised were transferred without ruling.

Gardner S. Hall and Burt R. Cooper, both of Rochester, for F. Sumner Coe.

Temple & Temple and Winfield Temple, all of Marlboro, Mass., for Harrington.

Stanton Owen, of Laconia, for Blaisdell.

William E. McKee, of Boston, Mass., Robert W. Upton, of Concord, and Winthrop Wadleigh, of Milford, for First Church of Christ, Scientist.

McLane & Davis and John P. Carleton, all of Manchester, for Wallace.

ALLEN, J. Whatever the technical legal character of a real estate mortgage as being real or personal estate, its dominant feature is of security for the primary obligation. It is collateral thereto and dependent thereon. The discharge of the obligation discharges the mortgage, while the discharge of the mortgage does not discharge the obligation. The obligation and the mortgage do not represent separate and independent items of property, except so far as is necessary for their enforcement. The mortgage does not carry the obligation, but it is the obligation that is superior and the controlling element. It carries the mortgage with it as incidental in lessening the chances of its nonperformance.

These simple observations are stated as the general understanding of persons familiar with real estate transactions, as was the testatrix. And the meaning of common speech is to be determined by rules of common sense and ordinary understanding rather than by legal definitions and rules of law which have themselves become largely modified by equitable doctrines. There is no general rule that the literal meaning of language is even presumptively the actual meaning. When the law itself treats mortgages of real estate in most aspects as personalty, argument that a layman regards his real estate as including his mortgages of real estate becomes ineffective.

While notes secured by mortgage are often called mortgages, neither the notes nor the mortgages are ordinarily called or considered real estate. It is to be assumed, in the absence of evidence to the contrary, that the testatrix intended to have her will given the ordinary and usual meaning of its language. And it is to be assumed, whether or not a lawyer assisted her in drawing the will, that she understood the mortgage debts due her to be personal property and to have their situs in Laconia where she lived. The bequests of pecuniary legacies and the residuary clause disposed of her personal estate, and there is nothing to show that she intended her devise of real estate to Sumner to be inclusive of any property ordinarily regarded as personal estate.

It would be admittedly strange and foolish for the mortgage debts to go to the legatees of the personalty and for the mortgages to go separately to Sumner, and the claim is made that, because the mortgages partake of the nature of real estate, they are included in the devise, and, because of the inclusion, the mortgages carry the debts with them. The practical answer is that the debts carry the mortgages, and, since they go together, and the debts are personal estate, the mortgages are also to be treated as personalty. What is predominant includes what is sub-ordinately related. Any technical overlapping between the debts as personalty and the mortgages as realty is to be reasonably resolved, and the will is to be construed practically. If A's will leaves B his notes and C his stocks, C does not receive the stocks which secure the notes given B.

The ordinary understanding of real estate transactions which the testatrix had determines any doubt as to what she intended adversely to the devisee's claim. Further support for this conclusion is given by extrinsic evidence. The bequest to Sumner of money equal to the amount of the mortgage debt due from him at the date of the will has strong probative value to show that the mortgage was not intended to be included as a part of the real estate devised. If the testatrix had intended to give the bequest of money, and also forgive the debt, it does not seem reasonable that she would think she had so provided by the devise of the real estate because a real estate mortgage secured the debt. Expression of such a purpose would naturally be shown by definite reference to the debt. And, as between the residuary legatees, who were sisters of the testatrix, and Sumner, who was her brother-in-law, her favor would naturally go to the former in the absence of opposing evidence.

The claim that the property in the two towns named had belonged to the deceased husband of the testatrix, and that she wished it to go back to his family, has no evidence of value in its support. It does not appear that any of the mortgaged...