41 N.Y. 507 | NY | 1869
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *509
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *510 The only points urged on behalf of the appellant are:
1st. That the son, George W. Brown, should be charged with the payment of all the debts of the testator.
2d. That the widow is entitled to all the property which she had at her marriage, in whatsoever it then consisted, or now consists; and therefore, the judgment at Special Term, awarding her the amount thereof, to wit, $700, was correct; and
3d. That the costs should be paid, not out of the principal of the estate, in reduction of the income to the widow, but out of the reversionary interest only.
1. It is manifest that the construction and effect given to the will by the court below, operates to render the provision requiring George W. Brown to pay any debts of the testator inoperative; the decree requires their present payment out of the principal of the estate, and of course it makes it impossible that the residuary devisee and legatee should have any debts to pay, and there can be none outstanding at the decease or marriage of the widow. The direction in the will in respect to this payment of debts by George, is clearly, I think, susceptible of being read in harmony with an intention in the mind of the testator that the whole burden of the small amount of debts which he owed should fall upon his son, and so the beneficial enjoyment of his whole property (except that in the codicil bequeathed to his daughter) be preserved to his widow. A single transposition would express that intention; thus, all debts that shall be outstanding against me, the said George W. Brown shall pay at the time of the decease or marriage of my wife. It is manifest, I think, that in the sentence which immediately follows in the will, the testator has used the decease or marriage of his wife to determine the time of payment merely, and yet the structure of the sentence is very similar to that which is above transposed. The idea expressed by such following sentence would in like manner be made clear if read thus: Said George W. shall, within one year from the decease or marriage *512 of my wife, or if she dies first, within one year from my decease, pay to my grandson, George H. Moore, the sum of $100, if said George H. Moore shall be living. Looking at both of these clauses in connection with the general intent apparent in the whole will, primarily to provide for the maintenance of his wife, I feel strongly impressed by the belief that the testator meant to charge the payment of all his outstanding debts upon his son; and that in his consciousness that he had provided him with no means therefor until his wife should die or marry, he fixed that death or marriage as the time when he should make the payment; thus making that, not the test or means of measuring the amount he should pay, but the time when the charge he imposed upon him should be executed. His form of expression may be infelicitous, and yet it is one which read as embracing two consecutive thoughts in the mind of the testator, will import the same thing even without transposition. First, "said George shall pay all debts that shall be outstanding against me." Next, when shall he so pay? "At the time of the decease or marriage of my wife," when he will be entitled to all the property, real and personal that I shall possess at my decease.
Again, the gift to George of all the property real and personal George is to become entitled to "by paying," i.e., on condition that he pays. It is irrational to conclude that the testator, conscious that, by law, the payment of his debts must be made without awaiting the decease or marriage of his wife, meant that George should have the benefit of this devise and bequest although he paid nothing.
On the contrary, it is in much better harmony with the language used, and with the other provisions of the will, to say that the testator intended that, provided George paid all debts outstanding against the testator, he should have all his property. It is, nevertheless, equally plain that he did not intend to charge him with that payment until, by the decease or marriage of his wife, he would have acquired a right of immediate enjoyment of the property itself. *513
How then can this intention of the testator, so inconsistent with the right of creditors to have immediate payment, be carried into effect? As a question between creditors and the estate of the testator, it must necessarily be answered that no provision of the will of the testator can legally operate to hinder or delay the payment of his debts; but as a question between the devisee or legatee entitled to the use of the property, and another entitled to the remainder or principal, the answer is quite different. If the payment of the debts is charged upon the remainder, whether by direct terms of charge or by words of condition, then although the devisee or legatee of such remainder is not put to an election which can make him personally liable for the debts, the charge may be executed upon the remainder itself. And this works complete justice and effectuates the intention of the testator. The case of Hoes v. Van Hoesen (1 Comst., 120), is in harmony with this view. The gift of the entire real and personal estate to the widow for life, with a provision that the devisee and legatee in remainder shall pay the debts, indicates an intention to exonerate the estate as to such life interest altogether, and cast the debts on the remainder. And the collection of such debts out of the remainder or residuary interest of George works nothing inequitable as to him; for if he takes that interest at the decease or marriage of the widow, he takes it reduced or abated only by the debts the testator intended to charge thereon. These considerations lead me to the conclusion that, if practicable, the debts of the testator should be paid out of the remainder or residuary estate, and interest given to the son. And that may be done by selling, subject to the use given to the widow during her life or widowhood.
2. Upon the next question I am of opinion that the decision at Special Term was correct, and that the testator intended to give, and did give his widow all the property she had at the time of her marriage, of whatever kind. It is not easy to suggest words more expressive of this intent, unless the testator should go into an enumeration of particulars. Thus *514 he declares that she is to have and hold, c., "all theproperty, whether household furniture or any other kind that she had at the time of our marriage."
Now, it is not only true that money is "property," but, where the testator has said all the property, and then gives intensity to the expression by saying "whether household furniture, or any other kind," he indicates that whatever kind of property it was which she had, or by whatever name it be called, it shall be refunded and be had and held by her to her own use. This made the gift not an acknowledgment of a debt, but a legacy to be paid out of his estate.
In the same paragraph he uses the word property in the same comprehensive sense when applied to his own estate, and it is not and cannot be doubted that it there includes all money, debts due him and whatever of value can pass under the name of property. Thus he gives to his wife "the use of all the property, both real and personal, I may possess at my decease," c., and in the next line declares that she is to have and to hold as her own, c.,c., all the property, whether household furniture or any other kind, that she had at the time of our marriage, c. It seems to me that this latter expression included the money she then brought to the testator, and that the decree at Special Term was correct in treating this as a legacy, and that whatever of household furniture or other chattels so owned by her remained, was given to her, and whatever of money she brought to the testator should be refunded out of sales of the personal estate, and if that be not sufficient, then out of the real estate. But a majority of my brethren are of opinion that the decree below, in this respect is right, and the decree thereupon, in this respect, must be affirmed.
3. The direction in regard to costs was correct. The whole theory of the action is that, by reason of doubt in regard to the intention of the testator, the aid of the court was necessary to determine the rights of the parties and instruct the executors as to their duty. I think this theory was sound, and that the action was properly brought. In such cases the *515 disposition of the question of costs is not governed by any invariable rule, but depends upon the particular circumstances. Whether the parties shall each bear their own costs; whether the costs shall fall upon the residuary estate, or whether it shall be charged upon the fund in the proportions in which it is to be beneficially enjoyed, are proper questions to be considered. Often, and perhaps it may be said that generally the particular bequests will be preserved and costs charged upon the residuary estate. This will be so when the condition of the estate and the objects of the specific bequests make that seem most equitable; but here the estate is small. The testator has very plainly indicated the relative degree in which he intended his widow and his son to be benefited, and that is by the use to the widow and the principal to the son. The decree practically charges the burden of costs in the same proportion; by paying it from the proceeds of sale, the widow loses the use and the son the principal to that extent.
Surely this is not inequitable toward her. As she has the use of the whole estate (some small amount of furniture excepted), I incline to think the son has more reason than she has to complain.
On the two grounds above stated I think the decree should be reversed, or modified in conformity with the views expressed.
Dissenting Opinion
The testator's personal estate was legally and equitably the primary fund for the payment of his debts, so far certainly as it was not specifically bequeathed to his widow and his daughter. (Hoes v. Van Hoesen, 1 Com., 120; Kelsey v. Western, 2 id., 500.) And there was nothing in his will showing that he intended to exonerate it from that burden, and impose the payment of his debts as a duty upon his son, to whom he devised his residuary estate remaining after the marriage or decease of his widow. For it was not his debts generally that the devisee was required to pay, but only such debts as shall be outstanding at the time *516 of the decease or marriage of his widow, which evidently contemplated that his debts would be either partially or wholly paid before the happening of the event upon which his son was to take his estate. And he must necessarily, therefore, have expected and intended that such payment would be made out of his personal estate, for no other provision was made by the will for it. And it could not have been expected by the testator that the creditors would be willing to delay enforcing payment of their debts until the devise to his son took effect in possession, by the decease or marriage of his wife. He must be presumed to have known that the creditors, in the ordinary course of legal proceedings, were entitled to collect their debts out of his personal estate within the period of eighteen months after the time of his decease, and in the absence of any immediate provision for their payment in any other way, that they would be paid in that manner. It was the debts remaining unpaid at the decease or marriage of his widow; not those owing by him at the time of his own decease, that the testator required his son to pay. And that would include only such debts as should not previously be collected by the creditors through his executors in the ordinary course of the proceedings provided by the statute for that purpose.
The testator died on the 24th of June, 1861. He was married to the executrix in 1846. At that time, it is averred in the complaint, she had personal property and money to the value of about $700, all of which the testator received from her. What the property, besides the money, consisted of was not made to appear on the trial; but there was no denial of the truth of this allegation. When the testator made his will he bequeathed to his widow, to have and to hold as her own property, and dispose of as she may see fit, all the property, whether household furniture or any other kind, that she had at the time of their marriage, and all furniture, bedding and other things in the house, made while they lived together. This was plainly a bequest of existing property, as distinguished from a legacy given in part to pay, or compensate *517 her for such as should have been worn out, destroyed or lost, or for the deterioration of that still capable of being received by her. It was a present bequest, unconnected with any terms indicating it to have been the testator's purpose to provide that his widow should be compensated for that portion of the property referred to, that might prove to be injured, worn out, lost or destroyed, beyond the benefit she would receive in that respect by the furniture, bedding and other things in the house, made while they lived together.
What the value of this property that he received from his wife was, cannot be accurately gathered from the case. For even the allegation made on the subject in the complaint is too indefinite to fix that value. The money and property are both stated together to amount in value to about $700. But what part of this consisted in money, and what part in other articles of property, was not stated. And in the view taken of this portion of the testator's will, it was not very important that any accurate statement of that value should have been made. For whatever the value might prove to be, was of little consequence as long as the widow was entitled to the identical articles themselves upon the decease of the testator. These she was entitled to, as they might be found to be without reference to the circumstance whether they proved to be worth more or less than the amount mentioned in the complaint.
The testator devised and bequeathed all his property, not specifically given to his widow and his daughter absolutely, and not necessarily required for the payment of his debts, to his widow for life, or while she should remain unmarried. There was no ambiguity or uncertainty in this part of the will. In case she afterward married, then the property she was entitled to use until that time, was bequeathed and devised to the testator's son. If that devise and bequest should take effect in his favor in consequence of her marriage, then for the residue of her lifetime she would be entitled to her dower in her husband's lands. (Bull v. Church, 5 Hill, 206; 2 Denio, 430.) *518
There was no impropriety in the disposition which was made of the costs of the parties to the suit. The case was a proper one for their payment out of the property of the testator, not absolutely given to his widow and daughter. And as the plaintiff has failed to establish the incorrectness of the judgment pronounced by the General Term, she should be charged with the costs of this appeal. The judgment should be affirmed with costs.
For the modification of the judgment in accordance with the view on the opinion of WOODRUFF, J.
HUNT, Ch. J., GROVER, WOODRUFF, MASON and JAMES, JJ., for the affirmance of General Term, with the modification as to the payment of debts, suggested in WOODRUFF'S opinion.
DANIELS and MURRAY, JJ., for affirmance.
LOTT, J., for reversal on different grounds from the majority.