The will contained no provisions in favor of the plaintiff. The expression, "after my husband, John P. Bartlett, shall receive what belongs to him, I give and bequeath," etc., is but a recognition of the plaintiff's statutory right to a portion of the testatrix's estate upon her death. The statute then in force provided that "the husband of any person deceased, . . . in case she dies testate and no provision is made for him in her will, . . . shall be entitled to one half, of her personal property, after payment of debts and expenses" of administration, provided she shall not leave surviving her any child or the issue of any child. G. L., c. 202, s. 15.
The question is whether the plaintiff is entitled under this statute to one half of the Opera House stock, in specie. The personal property of a decedent's estate passes to the administrator, in whom, pending its sale or transfer, the title is vested. Shirley v. Healds, 34 N.H. 407; Weeks v. Jewett, 45 N.H. 540, *Page 199 542. It is held by the administrator to satisfy the lawful claims that are chargeable to the estate (G. L., c. 196, s. 15) and he has power to dispose of those portions of it which are not specifically bequeathed (G. L., c. 196, s. 5) or which he has not been ordered by the judge of probate to reserve for the benefit of the heirs or legatees. G. L., c. 196, s. 6. A claim by a surviving husband, as a matter of right, to any particular piece of property in the hands of the administrator, is wholly inconsistent with this power and does not exist. The plaintiff's share of the personal property of his deceased wife depends upon the surplus of such property above the amount required to pay the debts and expenses of administration as shown by the executor's final account, and, in the absence of an agreement with the executor or an order of the court, is payable in money.
But how shall the executors obtain the money for the purpose, if the personal property specifically bequeathed is to go to the legatees? The will provides an answer to this inquiry. The testatrix, realizing that her personal property would not be sufficient to pay her debts, legacies, and other demands justly chargeable to the estate, authorized the executors to sell the whole or any part of the real estate. Whatever sum was needed to carry her intent into effect, above the sum arising from the personal property which the executors were at liberty to dispose of, could be obtained in this way. She evidently understood that discretion would be exercised so as not to defeat her specific legacies. Hall v. Smith,59 N.H. 315. As the real estate was appraised at $31,000, there would seem to be no difficulty in raising the funds required from a sale of a portion of the half of it which is not set off to the plaintiff as his share. Indeed, the proceeds of the sale of real estate already in the possession of the executors would seem to be sufficient to adjust all claims now outstanding against the estate, including the plaintiff's distributive share of the personal property.
Case discharged.
PARSONS, J., did not sit: the others concurred. *Page 200