269 Pa. 573 | Pa. | 1921
Opinion by
The primary fund for the payment of debts, legacies, and annuities is the personal estate of the testator. A testator may direct otherwise, and it is sufficient to exonerate the personalty from this burden, and impose it on the realty, if it appears by necessary implication that he so intended: Crone’s App., 103 Pa. 571. Such intention must generally be found within the will, and, where there is this internal evidence, it may be amplified by circumstances outside the will. The rule originally held personalty not exempt unless it appeared from the whole testamentary disposition that thére was an intention so expressed and of such weight as to convince a judicial mind an exemption of personalty was intended: Walker’s Est., 3 Rawle 229; this was modified in Eavenson’s App., 84 Pa. 172, and since then has been further modified.
Testator, after directing payment of debts, bequeathed to his niece two legacies of six thousand and forty thousand dollars respectively “out of [his] estate absolutely,” and also gave her “absolutely all [his] personal property,” describing it with some particularity. He then disposed of all the rest, residue and remainder of the estate (consisting of realty), directing what should be done with it. The executor was authorized and directed to sell the real estate and divide the residue “among the children of [his] deceased brother and two sisters.” Here is not only a positive direction to sell but a necessity to sell to execute the will, working an immediate conversion at testator’s death: Davidson v. Bright, 267 Pa. 580. Hence, all testator’s estate passes as personalty. In this view there can be no question but the personal estate, augmented by the money received from the
The decree of the court below is affirmed, costs to be paid by appellant.