Chase v. Moore

• Citation: 64 A. 21,73 N.H. 553
• Court: Supreme Court of New Hampshire
• Decision Date: 05 June 1906
• Parties: CHASE v. MOORE et al.

64 A. 21

73 N.H. 553

CHASE

v. MOORE et al.

Supreme Court of New Hampshire. Merrimack.

June 5. 1906.

Transferred from Superior Court; Pike. Judge.

Bill in equity by Arthur H. Chase, executor of Vianna A. Connor, against Charles C. Moore and another, for instructions as to questions arising under a will. Transferred from the superior court on an agreed statement of facts. Case discharged.

By the second clause of her will Vianna A. Connor, of Hopkinton, devised to her brother, Jerome B. Connor, all her "real estate wherever situated," and bequeathed to him all her "personal property in the house on said real estate and on said premises (but not including money, notes, bonds, or other securities)," and all her clothing and jewelry, wherever found. By the third clause she bequeathed and devised all the residue of her property, "whether real, personal, or mixed, and wherever situated," to her executor, in trust to pay Jerome from the income, or from the principal if the income should be insufficient, $2,000 a year in monthly installments during the hitter's life. By the fourth and fifth clauses she disposed of this residuary fund at Jerome's death by directing the payment therefrom of certain pecuniary legacies aggregating $6,100, and bequeathing the remainder in equal shares to three residuary legatees. At the date of the will, November 10, 1902, the testatrix owned real estate in Hopkinton, which had long been occupied by herself and Jerome as their home, and also a considerable quantity of household furniture and other personal property in the buildings. Jerome was then in feeble health and largely dependent on her for support. September 12, 1904, she sold this real estate for $4,000 and conveyed it to the purchaser, receiving $2,000 of the purchase money in cash and taking a note secured by a mortgage of the premises for the balance; and December 31, 1904, she moved away, taking her piano with her, and storing the rest of the personal property in Concord. She died March 4, 1905, leaving an estate of about $37,000, including the note and mortgage, which the plaintiff now holds. Jerome died June 6, 1905, and the plaintiff is administrator of his estate. The plaintiff, as executor, desires to be advised whether the proceeds of the sale of the real estate and the furniture and other property mentioned in the will as being on the real estate is the property of the estate of Jerome, or belongs to the residuary legatees under the will of Vianna.

Arthur H. Chase, pro se. Leach, Stevens & Couch, for heirs of Jerome B. Connor. Streeter & Hollis, for residuary legatees of Vianna A. Connor.

PARSONS, C. J. The will expressly excludes from the absolute gift to Jerome "money, notes, bonds, or other securities." There is nothing excepting from this exclusion money, notes, or securities arising from the sale of real estate. There is, therefore, no occasion to consider whether, in the absence of express exclusion, the same result would be reached, or whether under some circumstances a devise of lands might include real estate mortgages. Clark v. Clark, 56 N. H. 105, 108.

The remaining question is as to the household furniture and other property which the testatrix at the date of the will had on her real estate in Hopkinton, and which after the sale of the real estate was stored by her in Concord. It is contended that the language of the will localizes the subject of the legacy, which is adeemed by the removal of the goods during the lifetime of the testatrix. On the other hand, it is claimed...