Page v. Eldredge Public Library , 69 N.H. 575 ( 1899 )

The legacy which Mary E. gave to her husband lapsed. It is a general rule that a legacy is extinguished by the death of the legatee in the lifetime of the testator, and no facts appear which make this case an exception.

The devises of real and bequests of personal estate which Marcellus made his wife and brother in the first and fifth clauses of his will are specific; and it is the general rule that a specific bequest or devise is not liable to contribute to make up deficiencies in the assets available to pay general legacies. In this case the will not only does not charge them with the payment of these legacies, but expressly exempts them from such liability.

The construction of a will is the ascertainment of the testator's intention, and this is to be gathered, not alone from the words of the particular clause under consideration, but from the language of the will as a whole, read in the light of all the surrounding circumstances. Rice v. Society, 56 N.H. 191, 204; Kimball v. Lancaster, 60 N.H. 264, 273; Kennard v. Kennard, 63 N.H. 303, 310; Bills v. Putnam, 64 N.H. 554, 561; Kimball v. Society, 65 N.H. 139, 150; Edgerly v. Barker, 66 N.H. 434, 447; Thyng v. Lane, ante, p. 403.

It is apparent from reading the whole will that Marcellus did not intend that his wife should take under the second clause if his estate was sufficient to pay all his debts and legacies in full. The effect of the second and thirteenth clauses, taken together, is to give his wife the right to elect to take either such of his securities of the face value of one hundred and fifty thousand dollars as she might select, or his whole estate charged with the payment of his debts and legacies. The only occasion for inserting the second clause was to guard against the contingency of his estate proving insufficient to give his wife as much as he desired her to have and to pay the other legacies in full. If she elected to take under the second clause, she would have to return an inventory, select such securities as she desired, and settle an account of her administration of the estate; and if she failed to do this, she would take under the thirteenth clause.

Since Mary E. was unconscious from the time of her husband's death and could not elect, the question is raised whether this right to elect is personal, or whether it descends to her representatives. This does not differ in principle from the question which would be raised if Mary E. were insane, or if she had died before electing to waive the provisions of the will and take her rights under the statute. In both cases it has been held that the right of election is personal, — in the case of an insane widow, that, while the court has power to make this election, they will only exercise it for the widow's benefit, and not for the benefit of her estate (Penhallow v. Kimball, 61 N.H. 596); and in the case of a widow dying before she had elected to waive the provisions of a will and take her rights under the statute, that this right to elect is personal and does not descend to her representatives. Sherman v. Newton, 6 Gray 307.

Since this right is personal, it follows that it does not descend to the heirs-at-law of Mary E.; so they do not take the legacy given her in the second clause of Marcellus' will, but under the thirteenth clause take the estate charged with the payment of his debts and legacies.

Case discharged.

All concurred.