Gallagher's Estate

2 Foster 233 | Pa. | 1874

Mr. Justice Sharswood

delivered the opinion of the court, July 2d 1874.

It may be conceded that the bequest to Seth Zeigler of the interest of the Sulouff mortgage during his natural life, was a specific and not a demonstrative legacy. In the view which we take of the case, it is quite immaterial. The estate was amply sufficient, after discharging all legal claims paramount to the will, including the claim of the widow under the intestate laws, to pay-all the legacies given in the will — general or specific. It is very clear that the residuary legatees can take nothing until all these prior claims are discharged. “All the rest and residue of my estate not heretofore bequeathed,” is all that they can demand. It appears to have been the idea of the auditor below that the widow, claiming her share of the personal property under the intestate laws, has a title to it specifically, just as she has to her share of the realty. This is a mistake. The 'election of the widow does not destroy the right of the decedent to make a will and appoint an executor. The entire personal estate, bequeathed or not, vests in the executor in trust for administration and distribution : First, to pay debts and other legal claims. The widow electing to refuse to take under the wTill, has such a claim, of which the decedent could not deprive her, as he might deprive his next of kin of all claim, and give the entire residue to strangers. Over that residue he has entire power; he can carve it out and distribute it as he pleases, and in what order he pleases. His general and specific legacies must first be paid, and then, if there is anything left, it goes to the residue. The widow had no right to the one-half of the Sulouff mortgage specifically. It was the duty of the executor to include that as well as all other assets in the inventory and appraisement. It is true he could not be required to distribute it until it was payable and received. If it was lost from the insufficiency of the security or any other cause, Seth Zeigler would get nothing, and the widow would lose one-half of that item in the inventory and appraisement. As against her, the executor would be bound to collect and distribute it as soon as due; the testator could not postpone it for the term of Zeigler’s life. Nevertheless, Zeigler would be entitled to receive the interest of $2500 during his natural life. “ If the principal be paid in the lifetime of Seth Zeigler, I direct the same to be reinvested by my executor to secure the payment of the annual interest to him.” It is clear to us that as long as the estate can do so, after discharging all debts and paying over to the widow her one full moiety of the balance, Seth Zeigler is entitled, by the clear intention of the testator, to receive his annuity for life, before the residuary legatees receive anything. The title of the widow is under and through the executor, just as it would be under and through the administrator, if there was no will. She could maintain no action against a stranger for any part of it. We think, therefore, that the learned court below was right in securing the payment of this annuity to Zeigler, in preference to the claims of the residuary legatees.

Decree affirmed and appeal dismissed at the costs of the appellants.