Gordon v. James

| Miss. | Apr 15, 1905

Truly, J.,

delivered the opinion of the court.

This is 'a proceeding instituted "by appellants, as executors of the last will and testament of D. A. James, seeking a construction of that instrument, and asking instructions' from the chancery court as to the proper method to he adopted in distributing the assets of the estate. All devisees and legatees and other parties in interest'were cited and duly appeared as parties defendant.

The facts which rendered the action of the executors- advisable and 'seemingly necessary'are these: D. A. James, the testator, died on the 14th day of December, 1903, leaving a last will and testament, in which the appellants herein were nominated as executors. ' J ames left surviving him a widow and an only child, an infant of tender years, born since .the date of the execution of the testament, but dealt with and provided for in a codicil thereto. At the date of his death the testator was seized and possessed of a large estáte, consisting of three valuable plantations stocked' with farming implements and work stock, one or more houses and lots, about fifteen hundred hales of cotton, a large amount of insurance ón his life, stock in several bardes and in many other enterprises, -interests in mercantile establishments, jewelry, and other personalty. All of his property, without exception, was dealt with by the will, there being a general residuary clause. Most of it, and all of the more valuable portion, was either specifically devised or the subject of specific or' demonstrative legacies. The will, executed over three years before the death of the testator, made no adequate provision for the payment of debts. Hence in entering upon the administration of the estate it was evident to the executors that the property not specifically devised or bequeathed would he insufficient to pay in full the debts due by the testator. The widow, being dissatisfied with the provision made in her favor by the will, in due time, and in the manner pointed out by the statute, filed her formal renunciation of the will, and demanded the allotment of the portion granted her by the law. The agreed statement of facts admits that the separate estate of the widow did not amount in value to one-fifth of what she would lawfully have been entitled to; and as there was only one child, she claimed tó be entitled to a onedialf interest in the real and personal estate of her deceased husband. TJpon final hearing* the chancellor' rendered a decree giving specific directions with regard to the distribution of the estate. Some of the provisions of the decree are not excepted to, and we will recite only such portions as are directly challenged by this appeal, and shall deal with them not in the order of their presentation, but according to the magnitude of the property interests and the importance of the legal principle involved.

The first ground of error which we shall consider arises from the' second paragraph of the decree, which is as follows:

“Second — It appearing that Mrs. Oarrie W. James, the widow of said D. A. James, deceased, had renounced the provisions made for her under said will, and that the separate estate of said Carrie W. James was less than one-fifth of what lier legal portion of the estate of said D. A. James, deceased, would amount to, it is ordered, adjudged, and decreed that the said Carrie W. James be and she is entitled to receive one-half of said estate after the payment of the debts and costs aforesaid, and said' executors be, and they are hereby, ordered to turn the same over to said Carrie W. James in kind so far as the sainé can be done.”

The facts disclosed by the record upon which this portion of the decree is based are uncóntradicted. The widow, in pursuance of the provisions of Code 1892, § 4496, within six months of the probating of' the will, filed her renunciation thereof in the form indicated by' the statute. It is admitted that the entire separate estate owned by the widow — which consisted exclusively of portions of the proceeds of certain insurance policies upon the life of her husband, taken out by him for her benefit, and collected by her áfter his death, and therefore, under the decision of this court in Osburn v. Sims, 62 Miss., 429, constituting a portion of her separate property — amounted in value to less than one-fifth of what she would be entitled to by law in her husband’s estate. It is conceded that D. A. James had only one child, and therefore the widow’s lawful portion of her husband’s property would be one-half of the real and personal estate. It is contended by counsel for appellants that, inasmuch as the widow in this „ case renounced the provision made for her by the will of her husband, by operation of law her share of the property descends to her as heir, and coupled with all the burdens imposed by law as if her husband had died intestate as to this portion, and that the one-half of the estate as to which the decedent died intestate is first liable to all the debts of the decedent, by operation of the general principle of law which renders property undisposed of by will, and which descends to the heir in eases of partial intestacy, primarily subject to sale for the satisfaction of the debts of the decedent before any of the property which has been disposed of by the testator can be devoted to that purpose. The argument is perfectly sound, but the existence of the premises is erroneously assumed. Section 4496 does not say, upon the renunciation of the will by the widow the decedent becomes “partially intestate,” or “intestate as to a portion of his estate,” but expressly recites that upon the filing of such renunciation the widow “shall be entitled to such part of his estate, real and personal, as she would have been entitled to if he had died intestate.” If the decedent had died intestate in the instant case — and by operation of the statute quoted so he did, so far as regards the rights of his widow — the widow would have been entitled to one-half of his real and personal'estate under certain well-understood conditions and limitations. And they are not difficult of understanding. Upon the death of an intestate the estate, both real and personal, stands charged with the debts of the decedent — the personal estate primarily; secondarily, when the personalty is exhausted, the real estate. After the payment of debts, an heir’s lawful portion of the residue vests in the widow. This is the right of the appellee in this case. The widow’s lawful portion of the residue under the facts of this record is an undivided one-half. To adopt the argument of appellant, that by renouncing the provision made in the will and demanding in lieu' thereof her lawful portion in the estate of her husband, thereby her share became chargeable with all of the debts of the decedent, might defeat the very end sought by the statute. In many instances, especially where the decedent leaves several children surviving him, the lawful portion of the widow in the estate would be entirely consumed in the payment of the debts due by the decedent, and thereby the widow either practically disinherited by the inadequate provision of the will or absolutely so by having her portion devoted to the satisfaction of the creditors. Appellants endeavor to avoid the result of this consideration by the observation that it is not compulsory upon the widow to renounce the provision made for her, but that she is granted six months after the probating of the will to' investigate the condition of the estatfe and decide advisedly whether she will abide by the wish of her husband as expressed in his last will and testament, or, renouncing that, place herself under the protection of the law. Counsel evidently overlooked the fact that, while the renunciation is required to be made within six months after the probating of the will, debts due by the testator are not required to be registered or filed for probate until twelve months after publication for creditors, so that it might often be that an estate apparently solvent six months after the probate of the will would subsequently be shown to be deeply involved, and thus the widow be left destitute through a mere error of business judgment into which she had been entrapped by a misleading appearance of solvency. But a far weightier and more 'potential consideration is that the manifest intent of the legislature, as gleaned from all the statutory enactments bearing on this question, shows beyond per adventure that this privilege of renunciation was granted the widow so that she might be protected from possible injustice or mis judgment, and her proportionate interest in the residue of bis estate not be at all dependent upon the whim or caprice of her husband. So Code 1892, § 4497, provides that, if the will of the bus-band or wife shall not make any provision for the other, the survivor shall have the right to share in the estate of the deceased husband or wife as in case of unsatisfactory provision in the will; and in such case a renunciation of the will shall not be necessary, but the rights of the survivor shall be as if the will had contained a provision that was unsatisfactory, and it had been renounced. In such case, if the argument of counsel for appellants were sound, by the simple device of omitting all mention of his wife in his will any husband, if financially involved, could effectually disinherit his wife, or force her lawful’ portion of his estate to assume the entire burden of his indebtedness. For this reason, there being no provision made for her, and no renunciation of the will under such circumstances being required (because the law does not demand the doing of an idle thing), when the wife made a demand for her lawful share, and it was allotted to her, it would be consumed in the payment of the debts, under the principle already adverted to— that it had not been dealt with, and was, therefore, liable to the debts of the decedent; thus bringing about, without the chance of escape or remedy by the disinherited wife, the very condition of affairs which the legislature wisely sought to prevent. We see nothing complex or involved in the beneficent legislative plan developed by the sections under review. It is this: The wife for whom in her husband’s will an unsatisfactory provision is made, or for whom no provision is made, and who does not own separate property at the time of the death of her husband equal in value to what would be her lawful portion of her husband’s real and personal estate, is at liberty to signify her dissent to the will; and when she has done this, in the eyes of the law the decedent, so far as her rights are concerned, becomes an intestate, and her rights are fixed by the law, which would control if he had died in a state of total intestacy. Hence, after the debts are paid, she is entitled to her lawful portion in the residue of the estate, both real and personal, subject to the deduction which must be made therefrom if she -owned, at the date of the death, any separate property exceeding in value one-fifth of her lawful portion in her husband’s entire estate.

In the instant case, Mrs. Oarrie W. James, by her act of renunciation, became entitled to a one-half interest in .the real and personal estate of her deceased husband as if he had been an intestate*. Therefore, whén all of the debts of' the estate have been fully paid, she will be entitled to her distributive share of one-half of all the residue of the personal property, and will become a co-tenant with each devisee, and own a half interest in each and every parcel of real estate specifically devised by her deceased husband. The contention that sec. 4499 of the code, by mating use of the expression that the widow may signify her - dissent to the will and “claim to have the deficiency made up to her, notwithstanding the will,” intends to convey the meaning that this deficiency between the value of her separate estate and her lawful portion in her husband’s estate has to be “made up to her” in money, and that to this extent she becomes, not a tenant in common of the property, but a creditor of the estate, is manifestly unsound. The contrary intention is plainly disclosed by the clause of the section immediately following, which announces the rule whereby the court shall be governed in proceeding to make up the deficiency. That rule provides that she is to have a certain proportion of her “lawful portion of the lands” and her “distributive share of the personalty,” such interest -being arrived at by a calculation based upon the relative value of her lawful portion of the estate as compared with the previously ascertained value of her own separate property. This is the interpretation which has been placed upon similar provisions in other states in the few cases which our research has disclosed. In Doyle v. Doyle et al. (Ohio), 34 N. E. 166, the view which we have above announced, after full discussion, is approved, and the court in that case quotes from Hartshorne v. Ross, 2 Disn., 15, where it is said: “If he [the husband] died intestate, there is manifest propriety that she [the widow] should receive a liberal allowance; and should he devise his estate without providing as generously for his widow as did the statutes, she should have the option to abide by the will or take her portion at law. The election to receive less than her legal allowance should be hers. The husband executes his will subject to the law in force when it shall take effect, and therefore his devisees cannot complain. He might have cut off his heirs without any token of remembrance. Hot so with his wife. Her right is paramount. It depends not upon his kindness, much less his caprice.” And in Gupton v. Gupton, 3 Head, 490, speaking of a similar statute permitting renunciation of or dissent from the will, the court says: “It was intended to secure to her the election between the provision made for her by the will of her husband and the law of the land. It was intended that he should not have the power to deprive her of a just and proper share of an estate which she may have aided in building up. She has a right to stand upon the law and participate in his estate, whether he is willing or not. We will not defeat that right, and render this provision nugatory, unless we are compelled to do so.” In re Taylor's Will, 55 Ill., 252" court="Ill." date_filed="1870-09-15" href="https://app.midpage.ai/document/in-re-taylors-will-6954373?utm_source=webapp" opinion_id="6954373">55 Ill., 252; Stokes v. O’Fallon, Ex’r, 2 Mo., 32" court="Mo." date_filed="1828-05-15" href="https://app.midpage.ai/document/milly-v-smith-6608921?utm_source=webapp" opinion_id="6608921">2 Mo., 32; Arrington, Ex’r, v. Dortch, Ex’r, 77 N.C., 367" court="N.C." date_filed="1877-06-05" href="https://app.midpage.ai/document/arrington-v--dortch-3667015?utm_source=webapp" opinion_id="3667015">77 N. C., 367. We hold, therefore, that the decree of the chancellor was correct in deciding that appellee — Mrs. Oarrie W. James, the widow — after the payment of all the debts of the estate, is a co-tenant of the lands of the estate, and also entitled to her lawful portion and distributive share — one-half of the residue of the personalty.

The extent of the widow’s interest as fixed by law being ascertained, it is next necessary to'determine to what property her right is by law affixed. Air answer to this inquiry requires, first, an ascertainment of what will constitute the residue of the estate of D. A. James. And this, in turn, necessitates a determination of the manner in which, under the law and the will of the testator, the different species of property and classes of legacies and devises forming the corpus of the estate are to be dealt with in the due administration of the estate, and the order in which they are to be applied to the payment of debts. And this brings us to the consideration of the next assignment of error. This assignment challenges the correctness of the propositions of law contained in the third and portions of the first and fifth paragraphs of the final decree herein. By the first paragraph the executors were directed in the payment of the debts and cost of administration of said estate to “first exhaust all moneys which have come into their hands as the proceeds of notes, accounts, -or moneys due the said D. A. James, deceased, individually, or due Peter James & Co.; and if the proceeds from this source shall be insufficient to pay said debts and cost of administration, said executors shall next use the proceeds of all property not specifically bequeathed or devised, including all bequests or devises made to Carrie James, the widow of said D. A. James, deceased, who has renounced the provision made for her under said will, and in-, eluding any rents or shares of crops for the year 1903 which have come into the executors’ hands; and if the proceeds arising from the above two sources be insufficient to pay said debts and cost of administration, and it shall be necessary for the specific legacies and specific devises to abate, it is ordered that the said specific legacies and the said specific devises shall be abated proportionately to their actual value.” The third paragraph of the decree recited “that the legatees who were left stocks or bonds upon which dividends have been paid to said executors are entitled to said dividends, to be distributed in. accordance with the terms of this decree.” And by the con-, eludirig clause of the fifth paragraph of the decree it was ordered that “the rents and shares of crops from said Stonewall plantation for the year 1903 shall go to the said executors as assets of said estate, to be used in tbe payment of debts in tbe manner provided in tbe first paragraph of tbis decree.” Tbe sonndness of tbe ruling of. the chancellor embodied in tbe first paragraph above recited, which undertakes to fix tbe character of assets upon tbe crops and rents of tbe year 1903, especially those flowing from tbe Stonewall plantation, is first assailed. It is contended by tbe devisees that tbe rents and crops pass with tbe land to tbe specific devisee, and do not become assets in tbe bands of the executors. It is further urged by T. W. James, to whom tbe Stonewall plantation was specifically devised, that, regardless of the general rule, tbe rents remaining uncollected, and the growing crops which were on tbe plantation ungatbered at tbe date of tbe death of tbe testator — amounting, as tbe record shows, to seventy-eight bales of cotton— passed absolutely with tbe devise of tbe plantation, for tbe reason that, by item 2 of tbe will, it is expressly recited that, .“in case my death occurs before tbe first day of January, 1901, then and in that event tbe rents due from tbe said place for tbe year 1900 are to be paid to my executors.” In tbis connection we may also consider the next assignment of error, based upon tbe alleged error of law in tbe ruling of tbe chancellor in tbe third paragraph of tbe decree directing tbe dividends collected by tbe executors on tbe stocks and bonds specifically bequeathed to be paid to tbe legatees and distributed according to tbe terms of tbe decree. It is urged that such dividends are properly assets of tbe estate, and should have been appropriated by tbe executors to tbe payment of debts of tbe testator. In passing upon tbe questions presented by tbe recitals of tbe decree now under review, it becomes necessary to determine what, under our law, constitute assets of a decedent. And tbis inquiry involves tbe necessity of an interpretation of tbe sections of tbe code applicable to tbe subject. Gode 1892, §1881, provides: “Tbe goods, chattels, personal estate, cboses in action, and money of tbe deceased, or which may have accrued to bis estate after bis death from tbe sale of property, real or personal, or otherwise, and the rent of lands accruing during the year of his death, whether, he died testate or intestate, shall he assets, and shall stand chargeable with all the just debts and funeral expenses of the deceased and the expenses of settling the estate.” And in sec. 1882 it is further provided that “the court or chancellor may, on the application of an executor or administrator, decree the sale of the crop growing at the time of the death of the testator or intestate, upon such terms and in such manner as may be deemed best.” Section 1892 gives the executor authority “to sell for cash the cotton raised on the farm of the deceased, or any other commodity raised for market, and to account for the proceeds thereof as assets.” . Regardless of the rule which might have formerly prevailed, or which may now control in jurisdictions in which there has been neither modification nor regulation by express statute, either-as to the mode to be followed in the distribution of estates or as to what were formerly considered as assets, we now are governed by statutory provisions, and must first seek in them a definite and. certain rule for our guidance. If the lawmaking power has spoken, the courts must obey, and confine themselves to a simple endeavor to effectuate the legislative intent as made manifest. Giving to the sections quoted their natural and usually accepted meaning, it is evident to our minds that the rents flowing from the lands of the testator accruing during the year of his death and the crops remaining on the lands at the date of his death, whether gathered or still in the field, matured or unmatured, are alike considered assets of the decedent, whether testate or intestate, and as such pass into the hands of his legal representative, and constitute a portion of the primary fund which is liable' for the payment of the debts of the decedent and the expenses of the administration of the estate. In the instant case we are of the opinion that the rents and the growing crops on all of the lands of the testator are to be considered as assets, and dealt with accordingly. Nor do we think any intention on the part of the testator to make a difference with reference to the rents or growing crops upon the Stonewall plantation definitely appears from the item quoted. The expression in that item referred solely and specially to the year 1900, and was only to control in the event of a certain contingency — namely, the death of the testator before January 1, 1901. What special reason the testator had for this provision nowhere distinctly appears. But probably, in view of the season of the year in which the will was executed, after the crops had all been planted and were then growing, and the expenses of the year’s planting operations already in a large measure incurred, it was inserted to prevent the possibility of a dispute or misunderstanding over the rents and crops for that year between his devisees and his executors. But, whatever the purpose, that expression was restricted in its application to the year 1900, and dependent for its operation upon the happening of an event which never in fact transpired. After the end of the year 1900, the will being silent, the statute law applied as well to the rents and crops grown upon the Stonewall plantation as to the other lands of the testator. Nothing short of the positive, unequivocal expression of the testator can avoid the application of the statute. There is no such expression in this will. We hold, therefore, that the chancellor was correct in ordering the rents and crops, including the seventy-eight bales of cotton gathered after the death of the testator upon the Stonewall plantation, to be delivered to the executors as assets of the estate. We also uphold, as announcing the true rule, the third paragraph of the decree,' directing the dividends upon the stocks and bonds to be delivered to the specific legatees. This provision must, of course, under the facts of the instant case, have read into it the modifications that, first, these and all other specific legacies must suffer proportionate abatement, if necessary, as hereinafter indicated, and, second, that the widow is entitled to one-half the remainder of each specific legacy after the payment of debts; and this necessarily in-eludes an equal proportional interest and share in the dividends. Of course, if any of the dividends had been earned and declared, hut simply remained unpaid, prior to the death of the testator, they would have passed to the executors as assets of the estate. But we do not understand that the decree in this regard contravenes the rule announced, the inference being, from the language employed, that the dividends were not declared or fully earned until after the death of the testator. In such state of case the rule is clearly and concisely stated in 1 Underhill on Law of "Wills, sec. 409: “A specific legacy of securities — -as of shares, notes, or bonds — carries with it all accessions to it, or incidents of it, which have been created prior to the death of the testator. . . . The specific legatee of shares of stock is entitled to all dividends which have accrued down to the death of the testator, as well as to those which subsequently accrue.” See, as sustaining the text, In re Hodgman, 140 N. Y., 428 (35 N.E., 660" court="NY" date_filed="1893-12-19" href="https://app.midpage.ai/document/in-re-the-judicial-settlement-of-the-accounts-of-executors-of-hodgman-3582247?utm_source=webapp" opinion_id="3582247">35 N. E., 660); Bristow v. Bristow, 5 Beav., 289. “A specific legacy is a gift, not only of the thing or fund itself, but of all its produce, from the time of the testator’s death.” Barrington v. Tristram, 6 Ves. Jr., 345, and note. A specific legacy is “a gift by will of a specific article or part of the testator’s estate, which is identified and distinguished from all other things of the same kind, and which may be satisfied only by the delivery of the particular thing.” Such legacies “carry any accessions that may accrue by way of increase or interest after the death of the testator.” 18 Am. & Eng. Ency. Law, 714, and many citations. This being the generally approved rule, and not having been changed or modified by the express terms or plain intendment of the statute, we accept and adopt it as stated.

The next ruling of the chancellor, set forth in the concluding clause of the first paragraph of the decree above recited, assigned for error, is the requirement that, in the event the proceeds of all property not specifically devised or bequeathed should prove insufficient to pay the debts and costs of administration, so that it should become necessary for the specific legacies or the specific devises, or both, to he abated, so that the debts should be paid in full, “the said specific legacies and said specific devises shall abate proportionately to their actual value.” This presents for our consideration the question, never before expressly adjudicated by the courts of this state, whether a specific devise of land stands upon the same plane and.is to be controlled by the same principle as a specific bequest of chattels. Again referring for our guidance to the statutory provision as contained in the code, we find there plain recognition of the general principle that the personal estate of the decedent is the fund to which creditors must first look for the satisfaction of their debts. The last clause of sec. 1881 provides: “The lands of the testator or intestate shall also stand chargeable for the debts and such expenses over and above what the personal estate may be sufficient to pay, and may be subjected thereto in the manner hereinafter directed.” By see. 1893 an executor is granted authority, when he shall discover that the personal property will not be sufficient to pay the debts and expenses, “to file a petition in the chancery court for the sale of the land of the deceased, or so much of it as may be necessary, and exhibit to the court a true account of the personal estate and debts -due from the deceased, 'and the expenses and description of the land to be sold.” And even then, after the insufficiency of the personal estate has become apparent to the executor, no valid final action can be taken on the petition until the heirs and devisees and all other parties in interest are duly cited to appear and contest, if they so desire. Upon the hearing it is only in the event the court is “satisfied that the personal estate is insufficient to pay the debts of the deceased, and that the lands ought to be sold for that purpose,” that it is lawful to render a decree for a sale of a part or the whole of the lands. And in such case, where a portion of the lands has been sold, after a due observance of all the statutory requirements, “the heir or devisee whose lands shall he sold may compel all others holding or claiming hnder such intestate or testator to contribute in proportion to their respective interest, so as to equalize the burden of the loss,” thus recognizing the doctrine of forced contribution among devisees. The personal estate of the testator is first liable for sale for the payment of his debts. When the decedent dies intestate, it must be conceded that, except in special cases, provided for by sec. 1900, where the interests of all parties make it advisable, the entire personal estate must be exhausted before, even by recourse to the courts, any portion of the lands can be sold and the proceeds devoted to that purpose. ’ The reason for this distinction between personalty and land is obvious, and is still recognized in our jurisprudence. The personalty upon the death of the owner passes to the administrator; the title to the land vests at once in his heir.. If this be the rule and the order in which property must he applied to the liquidation of the debts of an intestate, we see nothing in the statute to warrant the conclusion that the legislature intended to adopt a different order in the case of a man dying testate. If the testator devise and bequeath by general terms his entire estate, unless the will contains evidence of a manifest intent on his part to commingle land and personalty, the personal estate must, as in case of intestacy, be' first exhausted before any portion of the lands can be used. In the case of Cady v. Cady, 67 Miss., 425" court="Miss." date_filed="1889-10-15" href="https://app.midpage.ai/document/cady-v-cady-7986860?utm_source=webapp" opinion_id="7986860">67 Miss., 425 (7 South. Rep., 216), speaking of pecuniary legacies which were chargeable upon the estate of the testator, this court, adverting to the diversity of opinion which exists in this and other instances where courts seek to discover the intention of the testator from the language he employs, and recognizing that the sole difficulty is in discovering that intent, which, when once ascertained, must be strictly followed, says: “Originally pecuniary legacies are payable by the executors, and out of the personal estate. The claim of the heir at law or of the devisee is ordinarily as much in the mind of the testator as that of the legatee; and unless a contrary purpose appears from the will, it ■will he assumed that the testator intended that legacies should •he paid only out of his personal estate, and upon that being insufficient, the legacies must abate in whole or in part.” See Knotts v. Bailey, 54 Miss., 238 (28 Am. St. Rep., 348); Heatherington v. Lewenberg, 61 Miss., 376.

Is there any valid distinction on which to base a logical differentiation between a case of a general legacy not charged on the land and one where the entire estate 'is disposed of by specific legacies and specific devises? We can see no logical ground on which to base a distinction or a difference. In the case of a. general legacy or bequest not charged on the realty, in an estate in which the land and personalty, were not commingled by the testator, if necessary for the payment of debts, the general legacy would have to abate, even to the extent of obliteration, before any deduction could be made from the devise. And unless we expect to overrule and repeal by silently ignoring the provision of our statute which provides that no part of the landed estate shall be sold for the payment of debts except upon the insufficiency of the personal estate, we must ■adhere to the same rule. To uphold this portion of the decree of the chancellor, and to require in the instant case that the specific devises shall abate proportionately with the specific bequests, would be tantamount to ordering a sale of a portion of the land — not on account of the insufficiency of, but in order to protect, the personal estate from sale, because it is evident that every dollar which the devisees are required to pay in order -to protect the lands specifically devised to them is simply the levying of a tribute upon the real estate -before the personalty has been exhausted. This would be accomplishing by indirection that which the plain letter of the law forbids the ■court to do directly. If the executors filed a petition asking a .decree for the sale, of any portion of the lands, as a condition .precedent to the lawful rendering of such decree it would be necessary for them to aver and show to the satisfaction of the court that the personalty had either been exhausted or was insufficient to pay the debts. Yet in the instant case we are asked to apply a portion of the value of the lands to the pay-xnent of the debts — not because there is no personalty out of which the debts can be collected, but in order to protect and preserve the personalty itself. We announce our conclusion on this point while duly mindful of the fact that the courts of many jurisdictions have adopted a contrary view and require a proportionate abatement of specific legacies and specific devises as if they were all of the same class. We are constrained to adhere to what seems inescapably to be the manifest legislative plan for the distribution of estates, leaving the wisdom and justice of the scheme to the consideration of the legislative department,, which alone had authority to inaugurate it, and is alone, in the absence of an expressed intent on the part of the testator, vested with power to change or modify it. We are strengthened in our view by the consideration that in the instant case, as to the widow, the decedent died wholly intestate. Iier rights, therefore, are fixed by the letter of the law, which requires the personal estate to be first exhausted before any part of the land can be sold for the satisfaction of debts. The widow is entitled to one-half the- residue of the personalty. That residue can only be known after all debts and costs of administration have been paid. Nor are her rights to, or the extent of her interest in, the lands of the estate complicated by any consideration of the legal rights of devisees and specific legatees. She is neither, but inherits as the forced heir of an intestate. As such, under no conceivable view of the law, can she be forced to abate or reduce her share of, or interest in, the lands. If the decree undertakes to deal with her legal rights, it is palpably violative of the statute. If her interest in the estate be exempted from its operation, the decree affords no definite rule by which any computation of the rights of the various parties can be .accurately made, as it involves two contradictory methods of raising, money to liquidate the debts of the estate — one, the statutory method of devoting the personalty to that purpose; the other, requiring the devisees of the realty to contribute proportionately to that end.

In our judgment, the view we have indicated — that in every instance, save only when a contrary desire on the part of the testator is plainly evinced by his will, the personalty constitutes the primary fund for the payment of debts, and must be first exhausted — can alone preserve in its fullness and integrity the legislative scheme devised for the administration and distribution of estates, and at the same time harmonize with the previous adjudications of this court. Any other rule would result in endless confusion, wrought alone by the proportion which the debts of the testator might bear to the value of his estate. The will of the testator is the supreme law. That being silent, or not showing a contrary desire, the statute will control.

But aside from these deductions drawn from — and, in our opinion, warranted by — the language of our statutes, the conclusion we have reached — that the doctrine of forced contribution does not -apply against specific devisees in favor of specific legatees (as by the statute it does among devisees), but that specific legacies must be first obliterated before specific devises can be abated — is not, as a general proposition of law, without the support of eminent authority. Says the court, in Elliott v. Carter, 9 Grat., 584: “That the devisee of real estate not charged with the payment of debts is entitled to have the assets marshaled against the claimants of the other funds of the estate in the order stated, including specific legatees, is well settled by the authorities. 2 Jarman on Wills, 601; Clifton v. Burk, 1 P. Wms., 678; Forrester v. Leigh, Amb. R., 171; Scott v. Scott, 1 Eden’s R., 458; Keeling v. Brown, 5 Ves.; 359; Mirehouse v. Scaife, 2 Mylne & Craig, 695 (14 Eng. Ch. R., 696). . . . This exemption of real estate devised extends as well to the case of a deficiency of personal assets for the payment of legacies as of debts, the legatees having no right to call upon tbe devisee to contribute to tbe payment of their legacies unless the real estate be expressly charged. Hayes v. Leaver, 2 Jarman on Wills, 547, note.” In Rogers v. Rogers, 1 Paige Ch., 188" court="None" date_filed="1828-09-08" href="https://app.midpage.ai/document/rogers-v-rogers-5547650?utm_source=webapp" opinion_id="5547650">1 Paige, 188, it is said: “When the will of the testator contains no direction as to the payment of debts, chattels specifically bequeathed must be applied to the payment of a judgment against a testator before resort is had to the real estate devised.” In a case where, as in the instant case, the payment of debts is charged by the testator, or by operation of law, upon the personalty, the order of application is thus stated: “The personal property at large is first to be applied to the payment of debts, and where legacies are to be used to pay debts, the first liable is the residuary legacy (2 Lomax on Executors, 126) ; and the next are the general pecuniary legacies ; then, the specific legacies; and, lastly, the real estate devised by the will. Edmunds, Adm'r, v. Scott, 78 Va., 729.” See, also, 19 Am. & Eng. Ency. Law, 1316, and citations; 4 Kent. Com., sec. 420, et seq.; Story, Eq. Juris., sec. 577; Shreve's Ex’r v. Shreve, 10 N. J. Eq., 385; Shaw v. McBride, 56 N.C., 173" court="N.C." date_filed="1857-06-05" href="https://app.midpage.ai/document/shaw-v--mcbride-3653621?utm_source=webapp" opinion_id="3653621">56 N. C., 173; Magruder v. Carroll, 4 Md., 351; Brill v. Wright, 8 Am. St. Rep., 717, and note. We hold, therefore, that it was error in the chancellor to decree that the specific devises of lands should abate proportionately to their value in the same manner as specific legacies.' The true rule is that upon an insufficiency of the'personal estate, which is primarily liable to the debts, the specific bequests must abate proportionately, even to the extent of complete destruction, before the devisees, to whom lands have been specifically devised, can be called upon to contribute.

The conclusion reached upon these points renders consideration of other minor assignments of error unnecessary.

To prevent all possibility of misunderstanding upon a remand of this case, we recapitulate: The estate should be dealt with as follows: All of the assets in the hands of the executors, including tbe proceeds of tbe rents of all tbe lands for tbe year 1903 and tbe seventy-eight bales of cotton gathered, after tbe death of tbe testator, on tbe Stonewall plantation, together with tbe other assets mentioned in tbe first paragraph of tbe decree of the chancellor, are to be devoted to tbe payment of tbe debts of tbe decedent and tbe expenses of tbe administration of tbe estate. Should these be insufficient to a complete liquidation of all tbe debts of the estate, tbe specific legacies should abate proportionately, and in tbe event these be exhausted and there still remain any debts unpaid, tbe specific devises of land must contribute proportionately to tbe payment of tbe debts remaining. After all debts have been fully paid, tbe widow, Mrs. Oarrie W. James, will be entitled to receive one-half the residue of tbe personalty of tbe estate, and will be co-tenant to tbe extent of an undivided one-half interest in all tbe lands of tbe estate. In ascertaining tbe interest of tbe widow in tbe Stonewall plantation, no account is to be taken of tbe unpaid. purchase money due thereon. That debt constitutes no part of tbe indebtedness due by tbe D. A. James estate, having been 'by tbe express terms of tbe will affixed as a burden to tbe devise of T. W. James; and, having been by him assumed before the renunciation by tbe widow, Mrs. Carrie W. James is tbe owner of an undivided one-half interest in tbe Stonewall plantation, with work stock, farming implements, etc., thereon, free of any incumbrance by reason of tbe unpaid purchase money due thereon. T. W. James, as to tbe Stonewall ¡plantation, with tbe work stock, farming implements, etc., thereon, in no sense occupies tbe position of a purchaser for value. Tbe doctrine invoked applies only to cases where bequests or devises are made in lieu of lawful debts or demands which tbe recipient bolds against the decedent and which be releases by reason thereof. Pom. Eq. Jur., sec. 1142. Tbe language of tbe clause of tbe will carrying tbe devise clearly evinces tbe intention and desire of tbe testator that tbe specific devisee shall take cum onere. This exonerates the personalty from its primary liability. 1 Underhill, Law of Wills, sec. 384. T. W. James occupies no higher or better position than other specific devisees and legatees. All are alike mere recipients of the testator’s bounty.

Decree modified and cause remanded, to loe proceeded with in accordance with the views herein expressed. Costs of this appeal to be taxed against the executors, appellants.