145 A. 242 | Conn. | 1931
George H. Fitch died in this State in 1929, leaving a will probated here in which he made certain bequests of personal property and money; devised the use, income, rents and profits of certain real estate situated in Massachusetts to a sister for her life, with a gift over at her death to her sons in fee; devised certain real estate in Connecticut, with certain personal property contained in the buildings upon it, to his wife for her life, with a gift over at her death to certain nephews in fee; and provided that "after the payment of may just debts and funeral expenses and the expenses of settlement of my estate, including in the latter the cost of said monument, and the satisfaction of the foregoing gifts," the residue of his estate should be divided among certain named beneficiaries. At his death the Massachusetts real estate was subject to three mortgages to a savings bank in that State. Two of these, one for $1300 and the other for $500, were made by former owners of the land and were not assumed by Mr. Fitch in the deed he received on his purchase of the property; but he did contemporaneously with it execute a certain instrument in which he guaranteed to the bank, its successors and assigns, full payment of the note for $1300 secured by one of the mortgages, and full performance of all the mortgagor's agreements, and agreed to pay all taxes assessed upon the property. Whether or not he executed a similar instrument as to the $500 mortgage does not appear in the stipulated facts. The third mortgage was made to the bank by Mr. Fitch himself. At the time of his death there was in effect in Massachusetts a statute which provided that: "A *65 specific devise of real estate subject to a mortgage given by the testator, unless the contrary shall plainly appear by his will, shall be deemed to be the devise of the interest only which the testator had at the time of his decease in such real estate over and above such mortgage, and if the note or obligation of the testator secured by such mortgage be paid out of his other property after his decease, the executor of his will or the administrator with the will annexed of his estate shall, at the request of any person interested and by leave of the probate court, sell such real estate specifically devised for the purpose of satisfying the estate of the testator for the amount so paid, together with the costs and expenses thereof." General Laws of Massachusetts, Chap. 191, § 23.
The executor presented his preliminary account to the Court of Probate in which he stated that all claims against the estate had been paid and that there remained on hand for distribution personal property to an amount greatly in excess of that due upon the mortgages. This account was accepted by the Court of Probate and from its acceptance the devisees of the remainder interests in the Massachusetts property have appealed upon the ground that it was the duty of the executor to pay the notes secured by the three mortgages. It is stipulated that the bank did not present any claim to the executor for the payment of the indebtedness evidenced by the several notes within the time limited for presenting claims but that the appellants have requested the executor to pay them and he has refused. It is not questioned that the appellants are entitled to secure an adjudication at this time of their right to have the notes paid by the executor nor is it contended that the failure of the bank to present a claim for such payment is a defense to this action. The case is reserved for our advice as *66 to whether or not the executor is under a duty to pay each of the three notes.
In the case of a devise by a testator resident in this State of land here situated, it is settled that the executor is under a duty, unless a contrary intent is expressed in the will, to pay a debt secured by a mortgage given by the testator upon the real estate.Bishop v. Howarth,
Our inquiry must be, does the same presumption of intention apply with reference to the devise of land lying in another State as would apply in the case of a devise of land here situated? Or, to put it another way, is the testator presumed when he made his will to have had in mind the law of this State or the law of the State in which the land is situated? And here it is to be noted that we are not concerned with any question as to the effect of the terms of the will upon the devolution of title to real estate in another State, as we were in Braman v. Babcock,
There is undoubtedly some conflict in the decisions as to the law which it will be presumed a testator had *68
in mind where the property involved lies in another jurisdiction whose law differs from that of the State of his residence. But the weight of authority undoubtedly upholds the view that at least where no question of the devolution of title to real estate is concerned the testator will be presumed to have had in mind the law of the State of his residence. Harrison
v. Nixon, 34 U.S. (9 Pet.) 483, 503; Jacobs v. Whitney,
While we have not had this precise question before us, in New Haven Trust Co. v. Camp,
We do not anticipate that any difficulty will arise out of the concluding portion of the Massachusetts statute, where it is provided that, in those situations to which the statute applies, if the debt is paid out of assets of the estate other than the mortgaged land the executor is required, at the request of any person interested and by leave of the Court of Probate, to sell the land to satisfy the estate for the amount so paid. Our construction of the will will no doubt be accepted by the courts of Massachusetts. Uterhart
v. United States,
A different situation is presented by the mortgage *70
the payment of which was guaranteed by the testator. This was upon the land when he bought it, and hence it does not fall within the terms of the Massachusetts statute, which applies to a specific devise of real estate subject to a mortgage "given by the testator." The reason for thus limiting the statute is obviously because no statute was necessary to accomplish the purpose intended as regards a mortgage upon land specifically devised which was in existence when the testator purchased it; for under the law of Massachusetts as under that of other jurisdictions an executor is under no duty to discharge such a mortgage, unless a contrary intent appears from the terms of the will. Hewes v. Dehon, 69 Mass. (3 Gray) 205, 208; Andrews v. Bishop, 87 Mass. (7 Allen) 490, 493;Creesy v. Willis,
The note we are now considering was payable on demand and action upon it might have been brought at any time without previous notice or demand. General Laws of Massachusetts, 1921, Chap. 107, § 93;Cosmopolitan Trust Co. v. Leonard Watch Co.,
With reference to the other mortgage upon the Massachusetts real estate which existed at the time the testator purchased the land the stipulation does not sufficiently inform us of the facts to justify an answer to the question addressed to it.
We advise that it is the duty of the executor to discharge from the personal assets in his hands the indebtedness secured by the mortgage upon the land which the testator made and that secured by the mortgage the payment of which the testator guaranteed; but the question addressed to the other mortgage we do not answer.
No costs will be taxed in this court to either party.
In this opinion the other judges concurred.