1. The terms by which the legacy to the Cemetery Association is given are unambiguous. The legacy is absolute, and it is the duty of the executors to pay it, notwithstanding their opinion of its inadequacy.
2. The case states that the personal property is more than sufficient to pay the legacies, and it is inferred that the personal property remaining after the debts and expenses of administration have been paid is meant. The only other facts bearing upon the second question submitted are the terms of the will and the fact that the estate consists in part of real estate. The situation, nature, and extent of the real estate are not stated, nor the number of the legatees under the residuary clause of the will. While the order that the executors shall divide all the residue and remainder of the property, real, personal, and mixed, into four equal parts, one which the testator "gives and bequeaths" to the legal heirs of each of certain of his uncles and aunts, has some tendency to prove an intention that the executors should convert the real estate into money for the purpose of division, it is not conclusive, nor sufficiently' full and decisive testimony to render it more probable than otherwise that such was the intention. The order in terms applies to real estate, as well as to personal and mixed property; and it may be that it is practicable to readily make an equal division of the real estate among the legatees. The case certainly does not show any necessity for its conversion into money in order to make division — a fact that would have great weight in determining the question of the testator's intention. Chandler v. Thompson,62 N.J. Eq. 723, and authorities cited. See, also, authorities collected in 11 Am. Eng. Enc. Law (2d ed.) 1043, et seq. The use of "bequeath" — a term that is ordinarily used in the disposal of personal property — does not outweigh the force of what appears to be an express order to divide the real estate. If all the circumstances relating to the real estate and the legatees were before the court, it might appear that there is a latent ambiguity in the terms of the will; but all that can now be said is that it does not clearly appear that the testator intended to make it the duty of the executors to convert the real estate into money for division. It may be added that if the legatees prefer to take the real estate in common, or are willing to do so, the executors will run no risk and violate no duty in allowing them to take it that way.
If during the settlement of the estate the executors took possession of the real estate, they should account in their administration for the income they received from it after the decree of insolvency. Ayers v. Laighton,73 N.H. 487. As the real estate is not needed for the payment of debts, expenses of administration, and *Page 38 legacies, it should be divided among the legatees, or should pass to them in common, immediately upon the settlement of the executor's account. The executors have no authority to hold possession of and manage it after this event. See next point in this opinion.
3. Upon the settlement of the executors' account, a sufficient sum should be set apart from the personal estate to pay the legacies to the persons who are given $100 annually during stated terms, and the balance of the estate should be divided and paid over as provided in the residuary clause. The sum thus set apart should be transferred to the executors as trustees, provided they choose to act as such and give the required bond. When the terms of all the legatees expire, the balance of money in the trustees' possession, less the expenses of the trust, should be divided among the legatees mentioned in the residuary clause. Prior divisions of portions of the trust fund may be made if they are not needed to meet the requirements of the trust. Thyng v. Moses, 65 N.H. 106; Campbell v. Clough, 71 N.H. 181; Brown v. Ferren, 73 N.H. 6.
4. Counsel have not argued the fourth question, perhaps because it was found that the facts reported were not sufficient for giving. an intelligent answer. All the persons that may be "legal heirs," within the intention of the testator, should be parties to the action, and their residences and relationship to the testator's uncles and aunts named in the residuary clause should appear; also the fact whether the uncles and aunts died before or after the date of the will and the death of the testator. The situation, value, and general character of the real estate left by the testator may also be material fact bearing upon the question. The court cannot undertake to answer this question until all the parties are before them or have had an opportunity to appear, and the facts bearing upon the question are more fully submitted.
Case discharged.
All concurred. *Page 39