Copp v. Hersey

31 N.H. 317

• Court: Superior Court of New Hampshire
• Decided: July 15, 1855
• Status: Published

Opinion

Eastman, J.

No question arises concerning the legacies to the brothers and sisters of Langdon Copp. These legacies have all been paid, and no objection has been made to their payment, on the ground that they were taken from a fund which was charged with a trust, and that the fund should not be reduced by deducting them from it.

The report states that most of the property of Langdon Copp was inherited by him from his father, William H. Copp. The inference is that he left some property which was not derived from that source, but as the amount is not stated, we must, perhaps, regard the case as if it all came from his father. If so, all the property that he left, being that of his father, would be charged with the legacy to Martha, contingent upon her marriage, and also with her support. Leavitt v. Worster, 14 N. H. Rep. 550; 3 Johns. Ch. Rep. 312; 3 Cowen 133; Veazey & a. v. Whitehouse, 10 N. H. Rep. 409; Pickering v. Pickering, 15 N. H. Rep. 281; Sheldon v. Purple, 15 Pick. 529.

The same authorities show that this devise to Martha was a legacy to her; and, consequently, the giving of the bond by Langdon Copp to pay debts and legacies would, at law, make the devise chargeable upon Langdon, and upon his estate.

Whether, therefore, we treat the legacy to Martha and her support as a charge upon the estate of William H. Copp, in the hands of Langdon, or as a liability upon Lang-don’s estate consequent upon his giving bond to pay debts- and legacies, it becomes a charge against the estate left by Langdon.

Were Martha married, so as to make certain and fixed the sum given her by her father, the amount would have to. be first paid by Langdon’s executor, before any distribution could take place ; for it would be a charge to be satisfied before distribution could be made. But inasmuch as she is not married, and it is impossible to say what sum will be required to fulfil the intent and provision of her father’s will. towards her, and all is contingent, we see no objection to the widow of Langdon receiving the amount of the estate decreed to her by the judge, upon furnishing security to respond, in case Martha shall call for her legacy, and to pay her proportionate share of her support. Clough v. Elliott, 3 Foster’s Rep. 182.

The real estate which "William H. Copp left will always be liable for the charges upon it in favor of Martha, in whosesoever hands it may be found; and as to the personal left by Langdon, the widow, having waived the provisions of the will, is as much entitled to have her share of it in her hands, on giving good bonds, as the executor, by giving his bonds. The will is not paramount to the law, nor can this executor, as against the provisions of the law, hold all the personal estate which Langdon left, as trustee for Martha. He is not the executor of William H. Copp, but of Langdon, and this widow claims her rights in his estate by law, and not by the will.

The provision of Langdon Copp’s will, in regard to his wife, is a very singular one, but it is quite clear that she is not obliged to abide- by it; and it is equally clear that he could make no charge on his estate by his will, which would deprive his wife of the interest in it which the law gives her. She is entitled, in such a case as this, to the share of a child, not exceeding one-third of the estate. Rev. Stat. ch. 165, § 13. So far as the widow is to be regarded, the estate is to be settled as an intestate estate. She has and takes her share in it, subject to the charges which the law makes upon it, and no others. She cannot herself take by law, and then turn round and require the executor to be charged with the provisions of the will, andfasten upon him the legacy and support of Martha. She must stand by the will or by the law. Neither can the executor deprive the widow of what the law settles upon her. The will gives him no such power.

The widow, then, having an equal right, with the daughter, to one-third of the personal estate, her right cannot be made subordinate to that of the daughter; nor can her share be made chargeable with the daughter’s support. But as the whole estate is liable for the support of Martha and the legacy to her, whatever portion of it comes into the hands of the widow, is subject to a proportionate charge.

She has not received one-third of the whole estate, but one-third of the realty as her dower.

The estate was inventoried at $9076,78.

Beal estate $5275,00.

She has received one-third of the real estate,..... $1758 00

Allowance,..........................$500 00

Distributive share, by decree,........... 1217 71

—- 1717 71

Whole amount received by her,................ 3475 71

Personal estated, inventoried,........... 3801 78

Credited by executor,................. 686 32

- 4488 10

Deduct charges exclusive of allowance,......... 334 96

4153 94

Beal estate,................................. 5275 00

Whole estate,.. ........ 9428 14

The widow, then, should contribute such a part of the charges in favor of Martha, whenever legally called for, as her share in her husband’s estate' bears to the whole estate.

The decree, giving to the widow her distributive share without reserve, must be reversed, but should be made to take effect as soon as she or the appellees shall furnish security to the executor, satisfactory to the judge of probate, that she will pay such a part of the charges of William H. Copp’s will, in favor of Martha, as $3475,71 bears to the sum of §9428,14, (the whole estate,) so long as she shall hold her dower; and at the termination of that, such a proportion as §1717,71 bears to the whole estate.