fendants should not forfeit any claims or demands against said estate by reason of their failure to advertise and sell the property for payment of taxes as aforesaid. They further agreed that they would pay the tax for 1884, "as the amount shall be determined by the supreme court in the case now pending for an abatement upon said tax." Similar agreements were made as to the taxes of 1885 and 1886. August 26, 1885, in consideration of a postponement of a hearing of the 1884 petition, then set for September, the defendants agreed in writing to remit all claim of interest, upon whatever amount of taxes the plaintiffs might finally be awarded to pay, from the 1st day of September, 1885, to the 1st day of January, 1886. An order was made in each case requiring the plaintiffs to pay interest upon so much of the tax as was not abated from December 1st in the year when the tax was assessed, at the rate of 10 per cent. per annum, except that as to the tax of 1884 no interest is to be paid from September 1, 1885, to January 1, 1886. The plaintiffs excepted to so much of the order as requires interest to be paid at the rate of 10 per cent. instead of 6.

Daniel Barnard and F. E. Elder, for plaintiffs. Jewell & Stone and Albin & Martin, for defendant.

ALLEN, J. In Telegraph Co. v. State, 64 N. H. 265, 9 Atl. Rep. 547, it was decided that the statute providing for the collection of interest at 10 per cent., upon all taxes not paid on or before the 1st day of December after assessment, from that date, is applicable to cases like this, where an appeal for abatement is pending at the time the running of interest is made to commence. That part of the statute requiring interest at 10 per cent. as plainly and forcibly applies as the provision requiring interest to be paid at all. The agreement of the parties that, pending the appeal, the plaintiffs would waive notice and sale of their real estate for the taxes due, and the defendants should forfeit no claims or demands against the estate by reason of their failure to advertise and sell the property, cannot change the result. There was no agreement to waive any part of the interest on such amount as might be found to be due, except the interest from September, 1885, to January 1, 1886, and no interest for that time is claimed. Since the interest is as much a part of the defendant's claim as the tax itself, and the agreement expressly saved the defendant's right to the whole claim, the whole interest upon so much of the tax as was found due and not paid, at the statutory rate of 10 per cent., may be recovered by the defendant. Exceptions overruled.

SMITH, J., did not sit. The others concurred.

(64 N. H. 554)

BILLS v. PUTNAM et al.1

(Supreme Court of New Hampshire. Hillsborough. July 19, 1888.)

1. WILLS-CONSTRUCTION-INTENTION OF TESTATOR-CHANGING CONDITION OF PROP

ERTY.

Where it clearly appears by a will that the intention of the testator was to give all his property remaining after the discharge of certain legacies in equal shares to several persons named, that intention will not be defeated because, after making the will, not intending to change the disposition, he changed the form of the residue from real to personal estate.

2. SAME-INTENTION OF TESTATOR-FINDING OF REFEREE-REVIEW.

The finding of the referee as to the intention of the testator is reviewable at the law term, the construction of the will being a question of law.

Bill in equity for the construction of a will. Facts found by a referee. Lucy C. Bills died September 28. 1882, leaving a will dated April 14, 1865, whereby she gave to her two daughters all her "wearing apparel, household

'Reported by W. S. Ladd, official reporter of the New Hampshire supreme court.

furniture, and personal property of every name, nature, and description, to be equally divided between them;" to two grandsons, $200 each; and to a son, $5; with a residuary clause as follows: "And as to the rest, residue, and remainder of my property, it now being in real estate, I give, bequeath, and devise to my son, Jabez F. Bills, my daughters, Lucy A. M. Putnam, Betsey J. Patterson, and my grandson George F. Bills, to be equally divided among the four; and for the better settling and dividing of said property among the devisees, I do authorize and empower my executor" "to sell at public auction or private sale, as he may think best, together or in such parcels, as he may think best, all the real estate of which I may die seized, and from the proceeds thereof pay all my funeral charges, just debts, and erect suitable grave-stones at my grave, divide my personal property between my two daughters as above mentioned, pay the money legacies to the persons as above mentioned, pay all the necessary expenses of administering, selling, disposing of, deeding, and conveying said real estate." There was a codicil, dated January 7, 1878, whereby the legacy to one of the grandsons was reduced to $50, and to the other wholly revoked. At the time the will was made the testatrix owned real estate worth about $2,900, but no personal property, aside from wearing apparel and household furniture, except one promissory note for about $40. Before her death she sold a large part of her real estate, and invested the proceeds which have come to the hands of the plaintiff in promissory notes and deposits in savings banks. From the terms of the will and the foregoing facts, the referee found that the intention of the testatrix was to give her two daughters, Lucy A. M. Putnam and Betsy J. Patterson, all the wearing apparel, household furniture, and other personal property of like nature which she possessed at her decease, but not the money she had on hand or invested; and to her residuary legatees all the balance of her estate, after paying therefrom the money legacies mentioned in the will and codicil, her debts, expenses of administration, etc.; and held that the balance of money now in the plaintiff's hands as executor should be divided equally between Jabez F. Bills, Lucy A. M. Putnam, Betsey J. Patterson, and George F. Bills.

R. M. Wallace, for plaintiff. C. W. Hoitt, for defendants.

CLARK, J. The question in this case arises from a change in the condition of the property after the execution of the will. There is no evidence of any change in the relations of the testatrix and the residuary legatees to indicate or account for an intention on her part to change the apportionment of her property between them. The evidence of a change of purpose in its distribution is furnished solely by the fact of a sale of a large portion of her real estate by the testatrix, and allowing her will to remain unchanged. It is not reasonable to believe that the testatrix, without cause, intentionally changed the disposition of her property so materially as to reduce the shares of two of the residuary legatees to one-fourth of the amount provided for by the will, as the property then was, with a corresponding increase to the shares of the other two. The absence of evidence showing a motive for changing the operation of the will upon the property is evidence upon the question whether any change was intended by the testatrix. It is to be assumed that the testatrix understood the terms and conditions of the will, and their legal effect, when it was executed. Its provisions, applied to the property at that time, show an intention to divide the bulk of it equally between the four residuary legatees named in the will. Her property then consisted of real estate of the value of $2,900, her wearing apparel, household furniture, and like property which she was then using in her daily life, and a note against a son-in-law for about $40. The will provides that the wearing apparel, household furniture, and personal property of every name, nature, and description be equally divided between the two daughters; that legacies of $200 each be paid to two

grandsons, and a nominal legacy to a son; and that the rest of the property, -it now being in real estate,—be equally divided between the two daughters, the plaintiff, and a grandson. By the subsequent sale of a large part of the real estate, it was converted into personal estate, and consequently transferred from the operation of the residuary clause to the special bequest to the daughters, unless the words "personal property," as used in the bequest to the daughters, are understood as used in a special and restricted sense. The determination of the question raised depends upon the construction to be given to the phrase "personal property." If the language is susceptible of more than one construction, in what sense did the testatrix use it? The interpretation of a will is the ascertainment of the testator's intention. That intention is gathered not only from the words of the particular clause under construction, but as well from the language of the whole will, from the relations of the testator to the persons who are the objects of his bounty, and from surrounding circumstances. Kennard v. Kennard, 63 N. H. 303, 310. But little aid is to be derived from a resort to formal rules, or a consideration of judicial determinations in other cases apparently similar. It is a question, in each case, of the reasonable interpretation of the words of the particular will, with the view of ascertaining through their meaning the testator's intention. Robison v. Orphan Asylum, 123 U. S. 702, 707, 8 Sup. Ct. Rep. 327; Bosley v. Bosley, 14 How. 30, 397. The term "personal property," in its broadest legal signification, includes everything the subject of ownership not being land or an interest in land, as goods, chattels, money, notes, bonds, stocks, and choses in action generally. In the ordinary and popular understanding, however, it is frequently used in a more restricted sense as including goods and chattels only, and embracing such movable and tangible things as are the subjects of personal use, and it is at least doubtful whether the term “personal property" is generally understood to include money, notes, and choses in action. In its popular meaning it is commonly applied to goods and chattels. It is sometimes used in wills with similar import, as where a testator bequeathed to his wife "five hundred dollars, in personal property such as she may select." Wallace v. Wallace, 23 N. H. 149. The will furnished evidence that the testatrix understood and used the term "personal property" in this restricted sense. The language of the bequest to the daughters is: "All my wearing apparel, household furniture, and personal property of every name, nature, and description." In the construction of wills, as well as statutes, when certain things are enumerated, and a more general description is coupled with the enumeration, that description is commonly understood to cover only things of a like kind with those enumerated. This is because it is presumed the testator had only things of that class in mind. Given v. Hilton, 95 U. S. 591, 598. By this rule of construction the words "personal property" in the bequest to the daughters are to be interpreted as embracing only things of like kind with those enumerated. Benton v. Benton, 63 N. H. 289. If the language was intended to embrace everything except the real estate, the enumeration of the wearing apparel and household furniture was superfluous. A similar construction was adopted in Dole v. Johnson, 3 Allen, 364, a case strongly resembling the case at bar, where the language of the bequest was, "All my household furniture, wearing apparel, and all the rest and residue of my personal property," and it was held not to include money, stocks, securities, or evidences of debt.

The language of the residuary clause is, “And as to the rest, residue, and remainder of my property, it now being in real estate, I give, * * *." The use of the phrase, "it now being in real estate," is significant as being descriptive of the property upon which the testatrix then understood the residuary clause was to operate, and as emphasizing her intention that the property which was then real estate should be equally divided among the four residuary legatees, whatever its form or condition might be when the will

took effect. The words "it now being in real estate" carry a suggestion of a possibility that the property might not be in real estate when the will became operative at her decease, and show that she did not understand that by the bequest of personal property any part of what was then real estate would in any event be included. The use of this language was consistent, in the view that the testatrix understood the bequest to the daughters as including only her wearing apparel, furniture, and articles of like kind which she might have at her decease. It was unnecessary and meaningless if she understood and intended the bequest to the daughters to include everything but the real estate. The provision of the will authorizing the executor, for the better settling and dividing of the property among the devisees, to sell all the real estate of which the testatrix might die seized, and from the proceeds to pay the funeral charges and debts, erect suitable grave-stones, "divide my personal property between my two daughters as above mentioned," pay the money legacies to the persons named and the expenses of administration, furnishes evidence that the testatrix understood that the personal property to be divided between the two daughters included only the wearing apparel and furniture, and goods of like character. It is evident from this clause in the will that the testatrix intended and understood that the residuary legatees should receive, not land, but money; and that the real estate, when converted into money by a sale, would not pass to the two daughters under the special bequest of the personal property to them. The language of the whole will, considered in the light of the circumstances under which it was made, the condition of the property, and the relations existing between the testatrix and the residuary legatees, indicates that the term "personal property" was used by the testatrix in the bequest to the daughters as embracing goods and chattels only, and not as including money and choses in action. In this view the sale and conversion of the real estate into money did not affect the disposition of the property under the will.

It is suggested that there is no question for the court in this case; that the interpretation of a will being the ascertainment of the testator's intention, which is a question of fact, and the intention of the testatrix being found by a referee, the court at the law term will not inquire into the correctness of the findings. Ordinarily questions of fact are not considered at the law term, but the fact of a testator's intention is ascertained by the interpretation of the will in the light of the surrounding circumstances; and, the construction of written instruments being ordinarily a question of law, the finding of the referee is revisable by the court. The result reached by the referee, that the money now remaining in the hands of the executor should be equally divided between the four residuary legatees, is sustained. Decree accordingly.

ALLEN, J., did not sit. The others concurred.

(64 N. H. 527)

DUBE v. MASCOMA MUT. FIRE INS. Co.1

(Supreme Court of New Hampshire. Merrimack. July 19, 1888.) INSURANCE-ASSIGNMENT OF POLICY-ASSIGNMENT FOR BENEFIT OF CREDITORS. An assignment by a debtor of all his property, under the New Hampshire statute, for the benefit of his creditors, operates as an assignment of a fire insurance policy held by him, which contains a provision that it shall be void if assigned without the assent of the company.

Assumpsit on a policy of insurance on the plaintiff's stock of goods contained in a store in Suncook for one year from March 13, 1886. The property insured was totally destroyed by fire, January 11, 1887. The policy contained a provision that it should be void if, without the assent of the com

'Reported by W. S. Ladd, official reporter of the New Hampshire supreme court.

pany, "said property shall be sold, or this policy assigned." January 1, 1887, the plaintiff made an assignment for the benefit of his creditors, under the statute, and on the same day a messenger was appointed to take charge of the property. The defendants moved for a nonsuit on the ground that the evidence showed an alienation of the property, and an assignment of the policy without the assent of the company, before the loss occurred. The motion was granted pro forma, and the plaintiff excepted.

H. G. Sargent and Wm. L. Foster, for plaintiff. W. H Cotton and Chase & Streeter, for defendant.

ALLEN, J. The policy, which is the contract of insurance, provides, among other things, that it shall be void if it is assigned without the consent of the company. Ten days before the loss by fire the plaintiff assigned all his property, under the insolvent laws of the state, for the benefit of his creditors. By that assignment his property became vested in the judge of probate, and in such assignee as the judge might appoint, (Laws 1885, c. 85, § 1,) and, however made or expressed, the assignment must be construed to pass all the plaintiff's property not by law exempt from attachment. Gen. Laws, c. 140, § 1. The plaintiff must be held to have intended an assignment as full and complete as the statute required; and the requirement to construe the assignment, "however made or expressed," as transferring his property not by law exempt from attachment, leaves no room for excluding from its operation any property or right or interest in any property whatever not embraced within the exception. The policy of insurance is a contract which gave him a valuable right, and was a part of his property not within the exception exempting it from attachment, and was included within the assignment. The policy of insurance, being a contract of indemnity, and personal with the insured, did not pass by the transfer or assignment of the property insured as incident to it, but as an integral part of the plaintiff's property, all of which was assigned. The assignment was voluntary, and was as effective to pass the policy as a written transfer upon the instrument without the consent of the insurer would have been. If, because without the consent of the insurer the policy could not be available to the assignee, the assignment was void, and so no assignment, a formal express assignment not consented to would be equally a nullity, and no assignment without the insurer's consent could be made which would render the policy void. With such a construction of the assignment, the clause in the contract prohibiting its transfer without consent of the company, under penalty of avoiding the policy, would be a meaningless absurdity, and no violation of its terms would accomplish what was prohibited. In Lazarus v. Insurance Co., 5 Pick. 76, it was decided that a general assignment by the plaintiff of all his property, including his policies of insurance, did not have the effect to transfer a policy then in the hands of a third person as security for a debt. But it was distinctly stated in the opinion (PARKER, C. J.) that “the general words in the assignment must be held to affect all such policies as the plaintiff had a legal control over." The statute requiring a construction of the plaintiff's assignment to mean a conveyance of all his property, there is no room to contend for any different intention on his part than to include in the assignment the policy of insurance, according to the terms of the contract. The assignment, being without the consent of the insured, made the policy void, and the plaintiff cannot recover. Judgment for the defendant.

BLODGETT, J., did not sit. The others concurred.