Dunbar v. Dunbar

| Vt. | Feb 15, 1831

Hutchinson, C. J.,

pronounced the opioion of the Court.— The testator having bequeathed to the widow, the appellant, all his personal estate, and made no provision for the payment of his debts, she now claims whatever the law will give her, to replace that part of the personal estate, which went to pay debts. It is probable, the testator wholly forgot to make provision for the payment of his debts, or else he thought he owed little or nothing ; and, for that reason, made.no provision for their payment. But it seems, that claims to the amount of $1,200, or more, have been substantiated against the estate, which absorbs more than half of the available personal property. The law makes the debts a lien upon the personal estate, first, and then upon the real estate. Under the circumstances of this case, the import of this legacy to the widow is, that she have what remains of the personal estate after paying all the debts. The ingenuity of counsel has been displayed in devising some consistent method to take this burden, of paying the debts, off of the widow. Whatever of the rents and profits of the real estate, during settlement, can be added to the fund of personal estate, it would relieve pro tanto. The court of probate allowed these rents, for one year after the decease, of all the real estate not occupied by the widow. She now claims that the executors be charged with the after rents, till the settlement in fact took place. We see no way in which to support this claim. The creditors, legatees, and devisees, have a like claim to the possession and use of their portion of the estate, at the end of the year allowed by law for settlement, unless the executors procure a further time to be allowed by the probate court. None was allowed nor prayed for, as we learn. It is probable the debts and legacies were paid, and the legatees took possession at the end of the year, given for settlement. If it were not so, the neglect ol the executors to settle their accounts, could not alter the rights of the different persons interested. It certainly could not transfer the profits of a legacy in real estate to the personal fund, for the benefit of the widow. In considering her claim to be treated as residuary legatee, pro tanto, we find the same difficulty. Indeed, there is nothing but these profits of the real estate to be called a residuum. The specific legacies must all be first satis-' fied before we can talk about a residue.

This will has fixed no time for the payment of any of the lega-ioies. There is, therefore, no better rule, than for the executors io occupy theyear allowed bylaw in settling, and ascertaining what claims there are upon the estate, and take care of and improve the estate in the mean time, and render their account at the end of, ’ _ -the year, and charge the repairs and credit the income thus far, and let the court then make the closing orders concerning the .estate. And, if the settlement is delayed for any longer period, let the accounts be closed as of that period, ;and let the executors make each as if he received his portion at that time, and this will .do justice to all. The decision of the court of probate, making the -executors .account for the rents of the real estate during the first year, and permitting the legatees to hold possession without account, after the year, amounts to the same thing now named*

A case might occur, in which justice would require that repairs -should be made on the portion of one devisee, and he bear the expense ; but nothing of that appears in the present case.

A further claim is urged by the appellant, that the executors •ought not to have permitted the Waldrons to take possession of their légacy, until the two hundred dollars'fixed as a lien upon that legacy was paid to the appellant. We.discover no necessity for compelling the executors to interfere with this legacy, nor with the two hundred dollars. The will has pointed out no particular duty to the executors in this respect. The two hundred dollars are not given to the appellant, as a legacy to be paid by the executors. All that is said about it is, -that the land is given to the Waldrons upon their paying the appellant this sum. We think the most practicable way is to treat this as a lien upon the land which the appellant can eniorce. She may bring her bill in chancery and obtain such a decree as will ensure her the money, or the land instead of it.

The decree of the court of probate is affirmed with costs; and this decree must be certified to the court of probate.