118 Wis. 169 | Wis. | 1903
Two points or assignments of error are urged by the appellant: First, that the finding of an intent to charge the money legacies upon the real estate given to the two sons by the residuary clause of the will is not justified by the language of the will, either alone or in conjunction with the collateral facts and circumstances; secondly, that, if so charged, the personal assets are primarily liable, and are not shown to have been exhausted.
Under the first head, we shall not deem it necessary to decide the full scope of the role of law quite vigorously debated in the contesting briefs, as to whether, in all cases of the bestowal of a mere residuum of mixed real and personal property, there must arise an inference of intent to charge specific money legacies upon the whole of that residuum, including the real estate, to which the following among other authorities are applicable: Greville v. Browne, 7 H. L. Cas. 689; Lewis v. Darling, 16 How. (U. S.) 1; Lupton v. Lupton, 2 Johns. Ch. 614; McCorn v. McCorn, 100 N. Y. 511, 3 N. E. 480; Will of Root, 81 Wis. 263, 267, 51 N. W. 435. In this case the court has found such an intent by inference from facts practically undisputed. The first of these, of course, is the language of the residuary clause itself, which only gives to the two sons the real and personal property, “with the exception of the above-named bequests;” clearly indicating the purpose of the testator that such bequests should be paid, in any event, before the two sons received anything. To this may be added the further facts that the total personal estate, other than household goods, was only about $10,700; that the money bequests, including the money
Counsel for appellant, however, invoke another rule, which, as a generality, is well recognized — that personalty is the primary source from which debts and legacies are payable, and therefore real estate, even though it be, in law, chargeable therewith, can be resorted to only in case of deficiency of personal assets. To this they add the rule that the deficiency must be of assets left by the testator, not merely a deficiency resulting from misapplication or devasta-vit by the executors. These rules are supported by much reason when invoked as between legatees and mere devisees, one or the other of whom must innocently suffer because of fault of the executor, over whose conduct the legatee has bad
From the views already expressed, the conclusion is obvious that certainly as against this appellant the plaintiffs are entitled to have the real estate described in the judgment applied to the legacies which are a charge upon it, and to have it sold, and its proceeds brought into court for distribution. The details of administration in accomplishing this result are not complained of. They are at least adapted to the result, and warranted by the law as applied to the situation. We find nothing of error in the judgment in any wise prejudicial to the appellant.
By the Court. — Judgment affirmed.