Opinion
Decided May 7, 1935.
A pecuniary legacy does not become specific merely because it was given for a specific purpose, e.g. the purchase of a home by the legatee. In such case if the testator subsequently purchase a house with the intention of conveying it to the legatee but makes no such conveyance there is no ademption and the house is part of the residuum of the estate and the executor is not authorized to convey it to the legatee. Where there is a specific devise or bequest, the devisee's or legatee's title is not affected by any insufficiency of the assets of the estate to pay general legacies. Upon a deficiency of assets general legacies are proportionally abated.
PETITION, for instructions by the executor of the will of Mary Evans Sargent, late of Keene. Transferred without ruling by Scammon, J.
The material provisions of the will are as follows.
The testatrix devised her house in Keene to her sister Flora with a provision in favor of Flora's children should she predecease the testatrix.
She bequeathed to Flora and a niece her household furniture and personal effects, except cash, bank deposits and other choses in action.
To her nephews she made general legacies of money.
The ninth paragraph reads as follows:
"NINTH. I give and bequeath to Walter S. Daggett the sum of five thousand dollars ($5,000) with which to buy a house.
Other cash legacies were made to the towns of Westmoreland and Marlow for the care of cemetery lots.
The twenty-fifth paragraph in part reads as follows:
"TWENTY-FIFTH . . . If I shall during my lifetime make provision for any of the foregoing legacies which are given for specific purposes, then such legacies shall be void."
The following facts are alleged in the petition and are not denied by the other parties interested in the will.
"Said petitioner says that at the time of the execution of said will, as he is informed and believes, there was sufficient estate belonging to the said Mary Evans Sargent to have paid the legacies in full but owing to the decline in values all or a part of the legacies must be materially reduced."
"Prior to the decease of the said testatrix she had purchased for Fifty eight hundred dollars ($5,800.00) a house for said Walter S. Daggett. In order to pay for it she gave a mortgage thereon and pledged certain of her securities for the purchase of the same. The balance now due on the purchase price secured by said mortgage and pledge is Forty two hundred and twenty-five dollars ($4,225.00). Walter S. Daggett went into occupation of the premises on the date of its purchase and is still in occupation thereof paying toward the expense of upkeep including taxes and insurance."
With reference to the ninth paragraph of the will, the executor asks the following questions:
"(a) Is the Executor empowered to transfer said house to said Walter S. Daggett and pay the remaining sum of Forty-two hundred and twenty-five dollars ($4,225.00) due on said purchase price and charge it against the legacy of Five thousand dollars ($5,000.00) treating the legacy as a specific legacy, or
"(b) Is the said legacy of Five thousand dollars ($5,000.00) to be classified with the other legacies?"
With reference to other clauses of the will, the questions of the executor are sufficiently indicated in the opinion.
Orville E. Cain, executor, pro se.
William H. Watson, for Walter S. Daggett.
Arthur Olson, guardian ad litem, for all legatees non sui juris.
The inquiries of the executor do not invite extended consideration. The bequest to Walter S. Daggett contained in the ninth clause of the will is general and not specific in character. A pecuniary legacy does not become a specific bequest merely because it is given for a specific purpose. 4 Schouler, Wills (6th ed.), s. 3057; 69 C.J. Tit., Wills, ss. 2097, 2121. The above bequest is, therefore, to be treated like the other pecuniary legacies in the will and reduced proportionally.
Although the decedent in her lifetime took some steps looking toward an ademption of this bequest, her plan was not fully carried out and no ademption resulted. The house which she purchased for Walter S. Daggett was never conveyed to him. The title was in the decedent at the time of her death and the house, therefore, falls into the residue of her estate. The executor is not empowered to transfer it to the said Walter S. Daggett under any circumstances.
By the second clause of the will the decedent's house is specifically devised to Flora Evans Daggett, and her title thereto is not affected by the insufficiency of the estate to pay other legacies in full.
The bequest of household furniture contained in the third clause of the will is also specific in character and is unaffected by the inadequacy of the estate to pay other legacies in full.
The two legacies to the towns of Westmoreland and Marlow are general in character and subject to proportional reduction with the other pecuniary legacies. Ellis v. Aldrich, 70 N.H. 219.
Case discharged.
All concurred.