Loring v. Woodward , 41 N.H. 391 ( 1860 )

Bell, C. J.

The rules for the allowance of interest on legacies where the will is silent on that subject, seem quite simple and well settled. If a pecuniary legacy is payable generally without designation of any time of payment, it is payable at the end of the year from the death of the testator, without interest; but if not then paid, it bears interest after the expiration of the year. Wood v. Pinoyer, 3 Ves. 333; Gibson v. Ball, 7 Ves. 96; Webster v. Hale, 8 Ves. 410, 413 ; Benson v. Maude, 6 Madd. 15; Freeman v. Simpson, 6 Simons 75; Sullivan v. Winthrop, 1 Sum. 1; Williamson v. Williamson, 6 Paige 298; Sholes v. Carr, 3 Munf. 10.

If such a legacy is payable at a specified time, it bears interest after that time, but not before. Heath v. Perry, 3 Atk. 121; Tyrrell v. Tyrrell, 4 Ves. 1; Birdsall v. Howlett, 1 Paige 32; Stephenson v. Axson, 1 Bail. Ch. 274; Smith v. Field, 6 Dana 361.

To these rules there is one exception. If the legacy is given to a child, or to an adopted child, or a child to which the testator has placed himself in the place of a parent, which is under age, and for whose support no other provision is made, it bears interest from the testator’s decease. Clarke v. Sewell, 2 Atk. 90; Wilson v. Madison, 2 Y. & Coll. 372; Bickford v. Tobin, 1 Ves. Sen. 310 ; Crickett v. Dolby, 3 Ves. 13; Harvey v. Harvey, 2 P. W. 24; Incledon v. Northcote, 3 Atk. 438; Chambers v. Godwin, 11 Ves. 2; Brown v. Timperly, 3 Russ. 264, n.; Sullivan v. Winthrop, 1 Sum. 1; Lupton v. Lupton, 2 John. Ch. 614; see 2 Wms. Ex. 1221, note; Hite v. Hite, 2 Rand. 509.

In the case of a specific legacy, that is, a legacy of any specific article or thing, the income, profits, or produce of the article after the decease of the testator, goes to the legatee without regard to the time at which the article is to be delivered to the legatee. Sleech v. Thorington, 2 Ves. Jr. 563; Barrington v. Tristram, 6 Ves. 345; Bristow v. Bristow, 5 Beav. 289; Sawrey v. Rumney, 15 E. L. & E. 4; 2 Rop. Leg. 227; Went. Ex. 445; Isenhart v. Brown, 2 Ed Ch. 341.

In the case of bequests to one, and in certain events over to another, each is entitled to the income during the time he is entitled to the principal. Taylor v. John, 2 P. W. 504; Shepherd v. Ingram, Amb. 448; Montgomery v. Woodly, 5 Ves. 522; 3 Atk. 102, note; Branstram v. Wilkinson, 7 Ves. 420; Mills v. Roberts, 1 R. & M. 555; McDonald v. Brice, 2 Keen 284; Barber v. Barber, 3 M. & Cr. 688.

These rules do not apply where specific directions are given by the will, or where a different intention may be inferred from its provisions. Leslie v. Leslie, Cases temp. Sugden 1; Bradley v. Dawes, 1 Keen 362; Knight. Knight, 2 Sim. & Stu. 492. As to these rules, see 2 W ms. Ex. 1221; 2 Rob. Wills 96; 2 Shars. Bla. Com. 514, n.

A legacy is specific, as has been said, when it is a bequest of a specific article of the testator’s personal estate, distinguished 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. Stevenson v. Dawson, 3 Beav. 349 ; 1 Rop. Leg. 170 ; 2 Wms. Ex. 993.

In the case before ns the legacy is clearly specific. “ One half of all my stock in the following named railroads, to wit, the Lowell & Nashua Railroad,” &c., and “one half of my stock in the Webster Bank,” designate the particular stocks referred to ; and if the testator had no such stocks, the legacy must fail. A legacy of my stock, or in my stock, or part of my stock, is deemed specific. Kirby v. Potter, 4 Ves. 750; Wallace v. Wallace, 23 N. H. 149; Ford v. Ford, 23 N. H. 212, where many cases on this point are collected; to which may be added, Grey v. Sharpe, 1 M. & K. 589; Sibley v. Perry, 7 Ves. 529; Foot, App’t, 22 Pick. 299; Brainerd v. Cowdery, 16 Conn. 1.

To this legacy, then, the general principle must apply, that the income and profits of these stocks go with the principal, unless there is s.ome thing in the will indicating a different intention; and we have discovered nothing, and nothing is suggested, from which a different intention can be inferred.

It is admitted by the case, that if it would be competent for the defendant to show, by parol evidence, that the testatrix, at the time of executing her will, intended to have the dividends go into the residuary fund, the proof would be that such was her intention, and her understanding of the effect of her will.

This admission raises the question whether parol evidence is admissible to vary, change, or affect the construction or operation of a will, in respect to the allowance of the income of a legacy.

It is not questioned that the general rule of the common law is, that parol evidence is not admissible to control, change, vary, or affect any written instrument. 1 Gr. Ev. 315; 2 Phill. Ev. 350; 3 Stark. Ev. 895, 1010.

The claim here is, that in the construction of wills, where the will is silent, and the law, in accordance with its general rules, presumes an intention of the party, there parol evidence is - admissible to rebut the presumption, by showing a different intention in fact.

The rule thus relied on is stated in 1 Gr. Ev. 339, sec. 296. Parol evidence is allowed by courts of equity to affect the operation of a writing, namely, where the evidence is offered to rebut an equity. The meaning of this is, that where a certain presumption would in general be deduced from the nature of an act, such presumption may be repelled by extrinsic evidence showing the intention to be otherwise. Thus two legacies, of which the sums and expressed motives exactly coincide, are presumed not to be intended as cumulative, but parol evidence may be received to rebut the presumption. Gresley Eq. Ev. 200-218; Roper Leg. 317, 353; 2 Rob. Wills 1; 2 W ms. Exors. 1109, 1110. Presumptions of law or equity, says Peake (Ev. 113), may be repelled by parol testimony, for they only prevail where there is no evidence to rebut them, according to the maxim, Stabit presumptio, donec probetur in contrarium. Davenport v. Mason, 15 Mass. 85, 90.

Though this rule is stated in some of the books as applying to wills only, and in others as a rule of equity, it seems to us that it is but an example of the general rules of the law in relation to presumptions. Presumptions are merely arbitrary rules, founded, however, on the principles of justice, or the laws of nature, or the ordinary course of human conduct and affairs, and the connection usually found to exist between certain things. They operate in some instances conclusively, and in others, where a peremptory and absolute operation would be attended with inconvenience, they may be answered and rebutted, presumptions of law being in such cases but prima facie inferences, or intendments made by the courts, and liable to be repelled by proof to the contrary.

The rule referred to is, we think, applicable only to cases of presumption of the latter class, and is stated quite too broadly in tbe books referred to, and should be qualified by an exception of all eases of conclusive presumption. To authorize, then, the admission of parol evidence of the devisor’s intention as to the profits or interest of a legacy, it is not enough that, in the silence of the will, the law entertains a certain presumption; it must appear that this presumption is not a conclusive or peremptory presumption which cannot be controverted, which is known in the civil law as a presumptio juris et de jure, but a mere primú fade or disputable presumption, in which contradictory evidence is admissible, denominated in the civil law, from which the ecclesiastical and equity courts derive this rule, presumptio juris. Gr. Ev. 18, note.

This question is to be determined by the authority of decisions, or upon considerations of justice and convenience applicable to each case; for our impression is that it would be very difficult to lay down in few words a general rule on the subject.

The reasons of convenience and expediency, and the analogy of cases of a similar kind, seem in favor of the conclusiveness of the presumption in this ease. In the' ease of the time of payment of legacies, where the will is silent, the presumption of the law is conclusive; no evidence of intention outside the will is received. So the presumption as to the time of payment, or performance of notes or other contracts, is conclusive; and the law, in the case of interest, does or does not make the allowance upon its own construction of written contracts, and never on any other evidence of intention.

Upon the question of authority no case has been cited or found by us, in which it has been held that parol evidence of the testator’s intention as to the interest of a legacy has been received; and this seems to us a strong circumstance, unfavorable to the exception contended for, to the general rule of the law forbidding parol evidence to affect written instruments.

"We have found one ease only referred to, wbicli seems to be in point here — Mansel v. Price, cited in 2 Cow. & Hill’s Notes to Phill. Ev. 529, from Sugden on Vendors 183, Am.Ed. of 1836. It is thus stated: “Direct evidence of intention is inadmissible for the purpose of proving what was to be done with the interest of a legacy till the time of payment.” Ve have not relied much on this citation, but, on the general view of the law, we think the evidence of intention offered is inadmissible, and there must be

Judgment for the plaintiffs.