Benton v. Benton

63 N.H. 289

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1884
• Status: Published

Opinion

Smith, J.

Mrs. Benton takes a life estate in the homestead under the second clause of the will, and the income for life of the bond and railroad shares under the fourth clause; and, in the contingency named in the fourth clause, the principal, or so much as may be necessary for her use. As to thus much there is no controversy. Neither the language of the fourth clause, nor anything in the testator’s circumstances, shows that he intended to include the bank share, notes, or money in that clause. The mention of railroad shares tends to exclude bank shares. There is no evidence that he intended to include the bank share under the term “ bond.” If he had intended to include the bank share in the fourth clause, he would naturally have mentioned it in connection with the railroad shares. Neither money nor notes are bonds or shares, within the meaning of the will.

The question then is, Are the notes, money, and bank share included in the third clause ? They are personal property, and might pass as such under this part of the will, if such was the intention of the testator. He bequeaths “ every article of household furniture in or on said premises, including piano, books, minerals, shells, and curiosities.” Whether a piano is household furniture is a question of fact. Sumner v. Blakslee, 59 N. H. 242. Hence, to remove any doubt as to his intention, the testator mentioned it, and he probably mentioned books, minerals, shells, and curiosities, because he thought they might not pass as “ furniture.” But the testator added, “ and every other article of personal property in and about said homestead, or wherever found, belonging to my estate.” This language would include family stores, carriages, live stock, farming tools, and other chattels, in addition to those previously mentioned.

The rule ejusdem generis, so far as it aids in the construction of this will, forbids the construction contended for by Mrs. Benton. Ordinarily it limits the meaning of general words to things _o£ the same class as those enumerated under them. 1 Jarm. Wills 716; Sumner v. Blakslee, supra. The testator’s careful use of language in the disposition of his household goods and other chattels, probably of much less value than the money, bank share, and notes, is strong evidence that he would not have left his intention as to this portion of his estate (of the value of more than $5,000) to be inferred from such terms as “ every other article of personal property in and about said homestead, or wherever found.” No satisfactory reason appears why he should mention books, minerals, shells, and curiosities, which would pass under the general description used, and omit to mention the bank share, money, and notes.

The construction contended for by the residuary legatees is strengthened by tlie fact that legacies to the amount of $1,700 are payable during the life of Mrs. Benton. If the construction contended for by her is correct, there is no estate undisposed of by the will from which those legacies, or the debts, expenses of administration, or funeral charges, can be paid during her life. Our conclusion is, that she does not take the bank share, money, or notes, under the third or fourth clauses of the will. This part of the estate goes to the residuary legatees upon the final settlement of the estate, after the death of Mrs. Benton, subject to the payment of the specific legacies, debts, &c. .UnSer the third clause she takes only the household furniture, piano, books, minerals, shells, curiosities, and other chattels not otherwise disposed of by the will. She should join with her co-executor in returning an inventory of all the estate, except what she takes under the third clause.

Case discharged.

Blodgett, J., did not sit: the others concurred.