The only question is, whether the sum of $800.69, proceeds of the sale of the real estate devised in the third clause, belongs to Samuel B. Sumner, or is to be shared by him equally with the defendant society.
The testator may be presumed to have supposed his real estate would be worth at least $2,000 at the end of the life estate. If the proceeds had been just $2,000, his intention is clearly expressed that they be equally divided between two legatees. The proceeds being less, there is nothing in the will from which it can be inferred that he intended the deficiency should fall upon one rather than upon the other. The case is as if he had directed his executor from the proceeds to pay to Sumner $1,000 when he shall arrive at the age of twenty-one years, and to the treasurer of the defendant society the sum of $1,000. The case differs in no respect from the ordinary case where the testator's estate is not so large at his decease as it was at the date of the will, or does not realize so much as he expected. The order in which legatees are named is immaterial. So it is where one is named in the body of the will and the other in a codicil. Hall v. Smith, 61 N.H. 144. The presumption is that the testator intended to benefit both legatees, and as much one as the other. Wallace v. Wallace,23 N.H. 149.
While the language by which the testator gives $1,000 to Sumner is not the same as that by which he gives the same sum to the society, it is not so dissimilar as to indicate that he had different intentions in regard to them. The legal effect of the language is the same in each case. Legacies expressed in similar terms stand on the same basis as to order of payment unless there is some clear ground of discrimination. 2 Redf. Wills 483. The legacy to the society is not from the residue of the fund after payment of the legacy to Sumner. The word "further" is used in the sense of "also," and does not indicate that the legacy to the society is given from a fund from which another legacy has been taken. *Page 323
Our conclusion is that the defendants are entitled to the fund in equal shares.
Case discharged.
BINGHAM, J., did not sit: the others concurred.