Morse v. Converse

• Decision Date: 04 January 1921
• Docket Number: No. 1707.,1707.
• Citation: 113 A. 214
• Parties: MORSE v. CONVERSE et al.
• Court: New Hampshire Supreme Court

113 A. 214

MORSE

v. CONVERSE et al.

No. 1707.

Supreme Court of New Hampshire. Hillsborough.

Jan. 4, 1921.

Petition for advice by Francis A. Morse, executor of the will of Rhoda Converse, deceased, as to the claims of Eben Converse and others. Advice given, and case discharged.

The will, dated April 3, 1913, made to different individuals bequests of the deposit with accumulated interest made by the testator in each of two savings banks, describing each by its number.

Upon the testator's petition the plaintiff, Francis A. Morse, was August 7, 1917, appointed conservator of her property by the probate court under chapter 56, Laws 1915. She died March 30, 1919, without having been adjudged insane. In ignorance of the provisions of the will the conservator in 1917 withdrew $500 from each of the savings banks at the request of the surety upon his official bond and bought therewith a liberty Bond of the first issue, and used the balance of the deposits with the deposit in another savings bank in the testator's necessary support. The balance of the estate in the hands of the conservator consisted of railroad stocks and bonds. The executor now has the Liberty Bond bought by him as conservator. The question submitted is whether the legatees of the savings bank deposits take anything by the bequests to them.

Kittredge & Prescott, of Milford, and Herbert R. Morse, of Boston, Mass., for the legatees of the Savings Bank Deposits.

Walter E. Kittredge, of Nashua, for the residuary legatees.

PARSONS, C. J. "A legacy is specific * * * when it is a bequest of a specific article of the testator's personal estate, dis tinguished from all others of the same kind; as, for instance, of a particular horse, or piece of plate, money in a purse or chest, a particular stock in the public funds, or a bond or other security for money." Loring v. Woodward, 41 N. H. 391, 394; Ford v. Ford, 23 N. H. 212.

"Legacies which are specific are said to be adeemed, when the particular thing given is either wholly lost, destroyed, or disposed of by the testator during his life, or its form so changed as not to remain in specie. Thus, if the thing given as a specific legacy be sold by the testator, or otherwise disposed of during his lifetime, or its form be changed,* * * it is lost or destroyed. So that, if the subject-matter of the legacy either ceases to be the property of the testator, or is so changed during his life as no longer to be susceptible of identification, the legacy is said to be adeemed or gone." 2 Red. Wills, p. 528; Gardner v. Gardner, 72 N. H. 257, 56 Atl. 316; Drake v. True, 72 N. H. 322. 56 Atl. 749. "It is well settled that, if a debt specifically bequeathed be received by the tes tator, it will be adeemed; for then there will exist nothing for the will to operate upon." Ford v. Ford, 23 N. H. 212, 218. If the tes tator in her lifetime had withdrawn the bank deposits and used or reinvested the fund, there can be little doubt upon the authorities that the legacies would be by her action de stroyed. A legacy is adeemed by the destruc tion of the thing itself so that there is noth ing upon which the will can operate or by such change in its character voluntarily made by the testator as indicates a change of tes tamentary purpose, an intentional partial revocation of the will. Hoitt v. Hoitt, 63 N. H. 475, 497, 3 Atl. 604, 56 Am. Rep. 530. "But no ademption will take place where the change in the thing bequeathed is effected by operation of law, as where a fund is convert ed into one of a...