No. 160 | Pa. | Apr 21, 1890
Opinion,
Abraham Blake died in 1864. By his last will he directed that his real estate, which consisted of a farm of 55 acres, and his personal property, should be sold and converted into money by his executor. Out of the fund thus provided he directed the payment of certain specific legacies, and gave the remainder of his estate to four residuary legatees in equal shares. The specific legacies were a charge upon the testator’s real estate for two reasons : first, because of the blending of the personal and real estate into one fund for the payment of legacies; second, because of the terms employed by the testator, which gave to the residuary legatees what should be left after the legacies were paid.
■ Among the legacies thus charged on the land was one of $1,000, the interest upon which was to be paid to Mary Chilcott during her life, and the principal of which after her decease was to be divided between her three children. The testator named his son John bis executor, and made him one of the residuary legatees. In converting the estate into money, as directed by the testator, the executor sold the real estate to himself, conveying it to one John Smith, who on the same day conveyed it back to him and his heirs. He then settled his account as executor, which was confirmed in the fall of 1865. He took credit for the $1,000 given to the Chilcotts, and, treating himself as a trustee under the will, paid the interest to Mary Chilcott regularly until his death, in 1872. He made a will, by which he directed that his debts, and the legacies in his hands under the terms of his father’s will, should he paid out of his estate. He also gave several annuities and legacies to members of his family. Subject to these charges, he devised the farm which came from his father to his son John Blake, Jr., and another farm 'to his son Thomas M. Blake. The first of
The learned auditor treated the fund as representing the title of John Blake, and held that his debts and the legacies due under his will stood on the same ground, and were entitled to share in equal proportions in the proceeds of the sale. The appellant contends that the debts must be first paid in full, and then the legacies must share pro rata in what remains. In considering this question, it maybe conceded that John Blake had, by means of the sale to Smith and the transfer to himself, secured a title to the farm which was capable of confirmation by the heirs at law of his father, and which was so ratified and confirmed by them. It is also clear that by the settlement of his account as executor, and the retention of the principal of the Chilcott legacy, he became a trustee for Mrs. Chilcott and her children, and liable to them as such. He so understood it, and so long as he lived he paid the interest annually to Mrs. Chilcott. When he died, with this money in his hands, he was debtor to the parties entitled to it, and the debt was a lien upon his property, real and personal, without any testamentary direction upon the subject, and entitled to be paid in preference to the legacies provided for in his will. But he recognized his liability, and expressly directed his executors to pay his debts, and the annuities and legacies which he had given, “ out of the said farms devised ” to his two sons, and added: “ I want each son to pay in proportion to the amount of the valuation which I have placed on each farm.” This direction fixed the rule by which the relative liability of the sons could be -adjusted between themselves, but neither diminished the rights of creditors as such, nor increased those of the annuitants and legatees.
The payment of debts, and the order in which they are entitled to take, are provided for by the act of 1834. After these are all paid, and not until then, can the directions of the testator in regard to the distribution of his estate be heard; and they take effect only upon what remains after the settlement of his estate, and the payment of his debts. The estate of John Blake was therefore to be applied in the first instance to the payment of his debts, among which are the unpaid legacies
Decree is now reversed, and the record remitted, to enable the Orphans’ Court to make distribution in accordance with this opinion.