Opinion
No. 3605.
Decided December 3, 1946.
A bequest of "all money I have" does not include, in addition to a bank deposit, proceeds from a war risk life insurance policy of which the testatrix had no knowledge and her interest therein as an heir-at-law was not determined until after her death. In the absence of evidence of a purpose of intestacy, it is to be presumed that the testatrix intended all her estate to pass by her will.
PETITION by the executrix of the will of Mary Sullivan for the interpretation of certain provisions of the will. She is designated in the will as "Alice Kemp." The testatrix died at Nashua on December 22, 1936. The following facts were found by the Superior Court:
"The inventory in the estate filed by the executrix on September 22, 1937, shows that the only asset is account No. 10642 in the Nashua Trust Company, containing a balance of $825.00.
"On or about April 10, 1945, the executrix received a check in the amount of $4610.00, payable to the estate of Mary Sullivan. This check represented one-half of the proceeds of a certain life insurance policy known as `War Risk Insurance' issued on the life of one Robert Dowling, who had been unheard of since 1912. There being no beneficiary named in the policy, and a period of twenty years having elapsed in which Robert Dowling had not been heard of, the United States Government in 1939 made inquiries into his whereabouts and as a result of the inquiries finally paid the value of the policy, which was the amount of $10,000.00, to his heirs-at-law. Robert Dowling was a nephew of Mary Sullivan and Joseph Dowling, and had last been a resident of the State of New York. Under the laws of that state the proceeds of this insurance policy were payable to Joseph Dowling and the estate of Mary Sullivan as heirs at law of Robert Dowling.
"Mary Sullivan was unaware of the existence of this insurance policy at the time she made her will and at the time of her decease. Joseph Dowling, Robert Kemp and Richard Kemp claim the proceeds of the insurance policy by virtue of the third clause of Mary Sullivan's will. Alice Kemp individually claims the proceeds of the policy by virtue of the fourth and fifth clauses of the will."
The pertinent clauses of the will are:
"THIRD — I give, devise and bequeath all money I have to my brother Joseph of Lowell, Mass., Robert Kemp and Richard Kemp both of Nashua, N.H., these three to share and share alike.
"FOURTH — I give, devise and bequeath to Alice Kemp all money from any insurance I may have, she to pay my funeral expenses and the ballance [sic.] to her and her heirs.
"FIFTH — All the rest, residue and remainder of my property wheresoever found or situate, real, personal or mixed, I give, devise and bequeath to Alice Kemp and I hereby appoint Alice Kemp of Nashua, N.H. the sole executrix of this my last will and testament. I hereby revoke all previous wills by me made."
All questions of law raised by the foregoing facts were reserved and transferred without ruling by Blandin, C. J.
Robert E. Earley, for Joseph Dowling, filed no brief.
John D. Wilcox, for Robert Kemp and Richard Kemp.
Edward J. Lampron, for Alice R. Kemp.
The ordinary meaning of the words "money I have" is money in possession or on deposit subject to check. "A bequest of `money' prima facie passes such money as was in testator's possession at the time of his death, or is on deposit in bank subject to check." 3 Page, Wills (lifetime ed.), s. 974, p. 59. A similar statement of the general rule is found in 93 A.L.R. 515.
In accordance with such interpretation it was decided in Hancock v. Lyon, 67 N.H. 216, that by the phrases, "money on hand" and "money remaining at my decease," the testatrix did not mean "money invested or deposited at interest in a savings bank at a distance, and from which it could be drawn only at certain times and under certain conditions prescribed by the rules of the bank."
It is true that a different meaning of the words under consideration may be and frequently is shown by the context of the will and by the surrounding circumstances. Where this is true, the intention of the testator should prevail. In Jenkins v. Fowler, 63 N.H. 244, the court held that by the words "all my moneys after paying all my just debts," the testator intended to bequeath deposits in a savings-bank and railroad stock. From the will it appeared that these items were not specifically given and that there was no residuary clause. It was a fact that unless the quoted words were construed as the court did there was insufficient money to satisfy certain bequests.
In the present case it is not disputed that the legatees named in clause "third" are entitled to the money on deposit in the Nashua Trust Company. From the facts it appears that this bequest could not be satisfied except from this account.
There is nothing in the will or the surrounding circumstances from which it could be inferred that the testatrix meant to include in the phrase, "money I have" the proceeds of the policy on the life of Robert Dowling. The court has found that she did not know of such a policy at the time she made her will and at the time of her decease. Furthermore, not until three years after her death was the situation investigated by the insurer, the United States Government; and not until after such action was the interest of the estate of Mary Sullivan recognized. The gift of "money I have" can be paid with the funds on deposit.
In Mutual Life Insurance Company of New York v. Spohn, 172 Ky. 90, it was held that the clause, "what money I have in bank," was not broad enough to include a vested interest in a life insurance policy. The proceeds of the policy on the life of Robert Dowling belong to Alice Kemp under either the fourth or the fifth clause. It is unnecessary to decide which.
In the absence of evidence of a purpose of intestacy, it is to be presumed that the testatrix intended all her estate to pass by her will. Clyde v. Lake, 78 N.H. 322.
Case discharged.
All concurred.