Sleeper v. Kelley
Supreme Court of New Hampshire
Writ oe Entry, to foreclose a mortgage given by the defendant to the plaintiffs’ testator, James Crawford, to secure a note dated January 1, 1872, for $2,175, upon which there was due at his decease over $4,000. Crawford, by his will, gave the defendant a legacy of $4,000, and died June 27, 1884. At the time of his decease he held several unsecured notes, amounting to nearly $500, against the defendant, which are now in the hands of the plaintiffs as executors.
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Writ oe Entry, to foreclose a mortgage given by the defendant to the plaintiffs’ testator, James Crawford, to secure a note dated January 1, 1872, for $2,175, upon which there was due at his decease over $4,000. Crawford, by his will, gave the defendant a legacy of $4,000, and died June 27, 1884. At the time of his decease he held several unsecured notes, amounting to nearly $500, against the defendant, which are now in the hands of the plaintiffs as executors. The defendant claims, and about December 4, 1886, gave the plaintiffs notice in writing of his claim, to have the legacy applied…
1Opinion of the CourtCarpenter, J.
It is not a question of the application of payments, but of the testator’s intention — What of his demands against the defendant did he intend should be satisfied by his gift? It must be presumed that he knew the amount and character of the debts due to him. If the legacy was equal to or greater than the defendant’s indebtedness, the testator’s intention that the defendant should pay nothing would be certain. Inasmuch as the legacy is insufficient to satisfy the whole amount of the testator's demands, his intention that the defendant should pay the remainder is equally certain. In order that…
2Cases cited1 opinion
- Cummings v. BramhallMassachusetts Supreme Judicial Court · 1876
3Cited by3 opinions
- Lacoss v. LebanonSupreme Court of New Hampshire · 1917
- Prentiss v. New England Box Co.Supreme Court of New Hampshire · 1910
- Wilson v. McCarrollSupreme Court of New Hampshire · 1923