Belcher v. Belcher

We think the Dudley Street estate, given to Joseph H. Belcher by the will of the late Joseph Belcher, is not liable to be charged for the purpose of completing the payment of the pecuniary legacies; for though it is included in the residuary clause, it does not go by that clause to the residuary devisees in common as a part of the general residuum, but it is separated so as to go, subject to certain conditions, to Joseph H. individually, and consequently so as to be subject to these conditions, a specific devise to him. The language of the residuary clause which particularly refers to the Dudley Street estate is as follows, to wit: "The share of the said Joseph H. Belcher in and to my estate to include the estate where he now lives, situated on the southerly side of Dudley Street, in said Providence, consisting of four lots of land, with the buildings and improvements thereon; said estate to be taken at the valuation of eleven thousand five hundred dollars, and no claim to be brought by the said Joseph H. Belcher against my estate for any sum which may have been by him expended in improving said estate." Evidently this means, not simply that the Dudley Street estate shall be included in Joseph H.'s share in the residuum, but that, if taken, it shall be taken instead of the $10,000 legacy, and beyond that to the extent of $1,500, not only for his share of the residue, but also in satisfaction of any claim which he may have against the estate for his improvements. Joseph H. has accepted the devise on the terms on which it was given, and we do not see how it can be consistently reclaimed. The will bears date February 6, 1875. The agreed statement of facts shows that the Dudley Street estate was in possession of Joseph H. as tenant from January 7, 1868, at $25 per month, to August 7, 1869, and subsequently at $26 per month, and that in 1873 Joseph H. had expended about $3,000 in improvements on it, upon an agreement with the testator that the expenses up to $3,000 should be shared equally between them, and that the testator had not paid his part. Clearly the estate was given to Joseph H. by the will on account of the special interest which he had in it, both because it had been so long his home, and also because he had expended so much in improving it for his purposes. The will cannot be carried out if the estate is alienated from Joseph H. by sale. If it is sold to somebody else, his share under the will will not include it, and, even if it were bought by himself, it would come to him as purchaser, not as his share under the will. And that any alienation of it from Joseph H. would defeat the intention of the testator is further shown by the grant of power to the executor contained in the will to sell so much of the real estate as may be necessary for the payment of legacies, inasmuch as the grant specially excepts out of its operation the estate specifically devised to his daughter, Emily Ann Reynolds, and the estate included in the share of Joseph H., thus recognizing them both as standing on the same footing as estates which were to go specifically as devised. Doubtless the testator's intention to have his sons take equally will be disappointed by this construction, but it will be disappointed because the estate is less valuable than he supposed, and the construction cannot be abandoned for that reason if the devise to Joseph H. is to be regarded as specific. In Robinson v. McIver, 63 N.C. 645, the decision was that general pecuniary legacies are not chargeable on specific devises of land, though found in the residuary clause. Moreover, the devise to Joseph H. is partly in satisfaction of a debt due from the testator, and is entitled to be preferred to the pecuniary legacies on that account. 2 Williams on Executors, 1364; Schouler on Executors Administrators, § 490, n. 4.

The bill must be dismissed, but, considering the nature of the question, without costs.