Kemp v. Dowling, 3605.

• Decision Date: 03 December 1946
• Docket Number: No. 3605.,3605.
• Parties: KEMP v. DOWLING et al.
• Court: New Hampshire Supreme Court

49 A.2d 924

KEMP

v.DOWLING et al.

No. 3605.

Supreme Court of New Hampshire.

Dec. 3, 1946.

Transferred from Superior Court, Hillsborough County; Blandin, Judge.

Petition by Alice R. Kemp, executrix of the will of Mary Sullivan, against Joseph Dowling and others, for interpretation of the will. Questions of law reserved and case transferred without ruling.

Case discharged.

Petition by the executrix of the will of Mary Sullivan for the interpretation of certain provisions of the will. She is designated in the will as ‘Alice Kemp.’ The testatrix died at Nashua on December 22, 1936. The following facts were found by the Superior Court:

‘The inventory in the estate filed by the Executrix on September 22, 1937, shows that the only asset is account No. 10642 in the Nashua Trust Company, containing a balance of $825.00.

‘On or about April 10, 1945 the Executrix received a check in the amount of $4610.00, payable to the estate of Mary Sullivan. This check represented one-half of the proceeds of a certain life insurance policy known as ‘War Risk Insurance’ issued on the life of one Robert Dowling, who had been unheard of since 1912. There being no beneficiary named in the policy, and a period of twenty years having elapsed in which Robert Dowling had not been heard of, the United States Government in 1939 made inquiries into his whereabouts and as a result of the inquiries finally paid the value of the policy, which was the amount of $10,000.00, to his heirs at law. Robert Dowling was a nephew of Mary Sullivan and Joseph Dowling, and had last been a resident of the State of New York. Under the laws of that State the proceeds of this insurance policy were payable to Joseph Dowling and the estate of Mary Sullivan as heirs at law of Robert Dowling.

‘Mary Sullivan was unaware of the existence of this insurance policy at the time she made her will and at the time of her decease. Joseph Dowling, Robert Kemp and Richard Kemp claim the proceeds of the insurance policy by virtue of the third clause of Mary Sullivan's will Alice Kemp individually claims the proceeds of the policy by virtue of the fourth and fifth clauses of the will.’

The pertinent clauses of the will are:

‘Third-I give, devise and bequeath all money I have to my brother Joseph of Lowell, Mass., Robert Kemp and Richard Kemp both of Nashua, N. H., these three to share and share alike.

‘Fourth-I give, devise and bequeath to Alice Kemp all money from any insurance I may have, she to pay my funeral expenses and the ballance [sic] to her and her heirs.

‘Fifth-All the rest, residue and remainder of my property wheresoever found or situate, real, personal or mixed, I give, devise and bequeath to Alice Kemp and I hereby appoint Alice Kemp of Nashua, N.H. the sole executrix of this my last will and testament. I hereby revoke all previous wills by me made.’

All questions of law raised by the foregoing facts were reserved and transferred without ruling by Blandin, C. J. Robert E. Earley, of Nashua, for Joseph Dowling.

John D. Wilcox, of Nashua, for Robert Kemp and Richard Kemp.

Edward J. Lampron, of Nashua, for Alice R. Kemp.

JOHNSTON, Justice.

The ordinary meaning of the words ‘money I have’ is money in possession or on deposit subject to check. ‘A bequest of ‘money’ prima facie passes such money as was in testator's possession at the time of his death, or is on deposit in bank subject to check.' 3 Page, Wills (Lifetime Ed.) § 974, p....