3 Rawle 229 | Pa. | 1832
The opinion of the court was delivered by
Samuel Walker, on the first day of March, 1820, made his last will and testament, and devised and bequeathed, unto his wife, Elizabeth Y. Walker, his two messuages and lots, situate on the south side of Sassafras street, between Delaware Front and Second streets, in the city of Philadelphia, with the appurtenances; also, all his household goods and furniture, moneys, bonds, mortgages, outstanding debts due and owing to him, and all other his personal estate, of what nature or kind soever.
He devised to Thomas Betts and Joshua Canby, and the surviver of them, &c. certain other messuages, and lots of ground, (particularly describing them,) in trust for his son Samuel Jones Walker, &c. and after his decease, in trust for his children, &c. and for want of children, then for the separate use of his daughter, Ann D. Harper, Sic.
He also devised to the same trustees certain other messuages, tenements, and lots of ground, &c., in trust, for the separate use of his daughter Ann D. Harper, &c.
And lastly, he the said Samuel Walker wished it to be understood, as his will and intention, that the husband of his said daughter, Ann
These devises included the whole property of the testator, at the time, but subsequent to' the date and making of the will, Samuel Walker acquired certain real estate. The' testator died the first day of December, 1824, without having republished his'will, or adding any codicil thereto, disposing of the said real estate, which' of course descended to his heirs at law.
■ The testator being indebted to various persons, the executors made an application to the Orphan’s Court, praying an order to sell the descended lands for the payment of debts, Elizabeth Y. Walker, the widow and legatee, claiming all the personal estate of the.testator, alleging, that the bequest to her is specific, exempted from the, payment of debts due-by the testator, and that the payment of them devolves upon the land descended to the heirs. The question between the heirs and the legatee is, which fund is primarily liable for the payment of debts.
It is a general rule, that in the absence of. a contrary intention, the personal estate is the first and natural fund for the payment of debts. But the testator may substitute the real fund in the room of the personal, which may < be done, either by express words, or by a plain intention manifested by the different provisions of the will.
The counsel, for the appellants, contend, that the lands descended, are primarily liable on two grounds.
.First. That the legacy to the wife is specific, and secondly, That it is manifest,'the testator intended, that she should have the legacy, exempted from the payment of the debts.
■ A regular specific legacy may be defined, the bequest of a particular thing, or money specified and distinguished from all others of the same kind, as of a horse, or piece of plate, money in a purse, stock in the public funds, a security for money, which would immediately vest with the assent of the executor. 1 Roper, 149.
There are also,’ bequests of general personal estate, which are •sometimes specific, as when the thing given'is distinguished and separated from the general estate, and specifically bequeathed, and capable of being delivered in specie. Thus, if A. bequeath to B. all his personal estate aí C. or in a particular house; or country, the legacy will be a specific. So a bequest of all the goods, &c. in a particular place, or of all the goods and chattels in á described country, or of all plate, linen and furniture in the testator’s house at A. or which shall be therein at the time of his decease; in such cases the bequests are specific, for they are confined in their extent, and fall within the description given of such legacies. The money, goods, &c. are so described by the testator, as to authorize the legatee to say to the executor, deliver the sum bequeathed to me, which is in a particular chest, bag or purse, or the goods which are in a particular .room, ,or
But, when the language of the bequest is such that neither by reference to any collateral thing, can the money bequeathed be distinguished from the testator’s other moneys, nor a clear intention be perceived to give a specific part of his personal estate, such a bequest will be general. It does not fall within the description which has been given of a regular specific legacy. The legatee is unable to point out to the executor any particular sum of money, or chattel, that he can call his own, as he had the power to do in the instances enumerated. The legacy, therefore, must necessarily be general. Since then a bequest of personal estate requires, as before mentioned, to be limited or controlled to some particular place, or to be referred to, as in some person’s hands, in order to make it specific, it follows, that if there are no such restrictive expressions, a legacy of personal estate generally will be general. A bequest of all a person’s personal estate generally is not specific. The very terms of such a bequest show, that it is general, and even, if the real and personal estate were devised as here, neither the circumstance of the bequest of the personal property being in the same sentence as the real, the devise of which is necessarily specific, nor the circumstance of the real and personal being disposed of together, would be sufficient to constitute the disposition of the general personal property a specific legacy. 7 Ves. 137. Howe v. The Earl of Dartmouth.
And what is this bequest but a disposition of all the personal estate of the testator l He bequeaths to the legatee all his household goods, and furniture, moneys, bonds, and mortgages, outstanding debts due and owing to him, and all his personal estate of what kind or nature, soever. He first enumerates the particulars of which his personal property consists, and then closes the sentence with a sweeping disposition of all his personal estate. It is as strong, but not more so, as if he had said, I give all my personal estate of what kind or nature soever, to Elizabeth Y. Walker. The enumeration of particulars does not affect the generally of the bequest. Precedents in Ch. 577. Amb. 566. 1 Merriv. 198. In the argument of the last case, the counsel say, in regard to the enumeration of articles, with which the clause in the will is introduced, he did not wish to be mistaken in contending, that such an enumeration alone will render a bequest specific. The whole bequest must be taken together, for the intention of the testator on this subject, as in every question on the construction of wills, is the principal object to be ascertained. It is, therefore, nécessary, that the intention be either expressed in reference to the thing bequeathed, or otherwise clearly appear from the will, to con
It cannot be contended, with any hope of success, nor has it been attempted, that the testator intended to confine the bequest to his wife, to the property which he possessed at the making of the will. There is nothing in the will which indicates such an intention. And'yet specific bequests, as defined, are gifts, by will, either of some particular thing, or part thereof, or of some specified or identical fund, or article, or part thereof, of which the testator was possessed, at the time of making his toill, so as clearly to point out, what, in particular, was intended for the legatee. Preston on Legacies, page 83, and Ward on Legacies, 18, and the authorities there cited. Had the lands, which are specifically devised, been sold by Samuel Walker in his life-time, and converted into money, Elizabeth Y. Walker would hardly have contended that this was a specific bequest, which operated only on the personal estate of which the testator was possessed at the date of the will. In such a case we are warranted in believing she would have claimed all the personal property left at the death of the testator. And this, in effect, she does now. She never attempts to discriminate between the estate, held at the date of the will, and the estate of which he died possessed. She claims the whole personal effects, to which, for aught that appears, she is only entitled as a general legatee, and at the same time calls in the aid of the descended lands, on the ground that the legacy to her is specific, and not liable to the creditors, until the descended lands are exhausted.
The general rule in marshalling assets, so far as regards this case, is thus settled. 1st. The personal estate, excepting specific bequests, or such of it as is.exempted from the payment of debts. 2d. The real estate which is appropriated in the will as a fund for their payment. 3d. The descended estate, whether the testator was seized of it when the will was made, or it was afterwards acquired. It has beén shown, that the legatee has no right to claim an exemption of the personal assets, on the ground that the bequest to her is specific. The next inquiry will be, whether any thing appears, which shows an intention on the part of the testator, to exempt his personal estate from the payment of debts. In order to exonerate this personal fund, the will must contain express words for that purpose, a clear, manifest intention, a. plain declaration, or a necessary inference, tantamount to express words. The question, in each particular case of exemption, resolves itself into this; Does there appear from the
A court of chancery considers the bequest so far specific, as to throw the debts of the deceased on the lands descended ; and it is difficult to discover any difference between such a bequest, and a bequest of a specific chattel. The testator indicates his intention that the legatee should have the one, as strongly as the other, and it is on the principle of intention, that in marshalling the assets, the court directs the creditors, who have liens upon two funds, to exhaust the lands descended, before they levy on the personal estates specifically devised.
This is a contest between the legatee and the heirs of the testator, and not, as has been alleged, between her and the husband of Ann
Decree of the Orphan’s Court affirmed.