31 Cal. 595 | Cal. | 1867
Lead Opinion
In 1855 Frederick A. Woodworth made his will, by which he left “ all ” his “ personal property,” and “ one half of all the real estate of which ” he might “ die possessed,” to his brother, Selim E. Woodworth, and appointed him sole executor. The remaining half of the real estate, he left to his mother, sisters and others—the appellants in this proceeding. No reference to, or provision for, debts is made in the will. Long after making the will, in 1864, said F. A. Woodworth mortgaged portions of his real estate to the “ Savings and Loan Society” to secure the sum of something over thirty thousand dollars and accruing interest, and soon after died, leaving the same incumbered by said mortgage. His personal estate, at the time of his decease, was more than sufficient to pay all his debts, including said mortgage. The said Selim E. Woodworth qualified as executor, took possession of the estate and collected rents of the real estate accruing subsequent to the testator’s decease, to the amount of over fifty thousand dollars. A large portion of the rents of the real estate thus collected were applied in payment of the debt secured by said mortgage. The executor, in his accounts, charged himself with the rents collected and credited himself with the amount paid in satisfaction of the mortgage and other debts, and claimed to have his accounts allowed, and finally settled, on that basis. The other devisees filed exceptions to the account, alleging, as a ground of objection, that the personal estate ought to have been applied to the extinguishment of the mortgage and other debts in exoneration of the real estate—at all events, that the rents of the real estate should not be applied in exoneration of the personalty. The Probate Court held that the rents were properly applied to the payment of the mortgage, and the correctness of this ruling is the only question presented by the record on appeal.
Under the common law, where no different order is prescribed or indicated in the will, as between executors, devisees and heirs, the assets of the deceased, for the purpose of paying
Mr. Roper, the learned author of the standard work on Legacies, says a specific legacy may be defined: “ The bequest of a particular thing, or money, specified and distinguished from all others of the same kind, as of a horse, a piece of plate, money in a purse, stock in a public fund, a security for money, which would immediately vest with the assent of the executor.” (1 Roper on Legacies, 191.) He then illustrates his definition by an examination of, and reference to, a multitude of authorities bearing upon the question. Substantially the same definition is given in Ram on Assets, 467 : “ A specific legacy, as its term imports, is a bequest of a particular article or articles capable of being designated and identified.” (Bradford v. Haynes, 30 Me. 108; Pierce v. Snaplin, Atk. 508.) Mr. Williams says: “ The bequest of all a man’s personal estate generally is not specific; the very terms of such a disposition demonstrate its generality. And the circumstances of the bequest of the general personal estate being in the same sentence with that of the real, the devise of which is naturally specific, will not be sufficient to make it a specific legacy.” (2 Williams on Executors, 1,006; Redfield on Wills, Part II, 475; Ib. 457.) In Parrott v. Worsfold, 1 Jacob & Walk. 595, where a testator stated that he had fifteen hundred pounds five per cents, and gave it to A., and then gave to B. all other stocks that he might be possessed of at his death, the latter bequest was held not to be specific, and liable in exoneration of the former. The Master of the Rolls said: “ Now the words are in their nature general, comprehending not only the stock he had at the time of making his will, but all that he might subsequently acquire; if he had sold out and bought
The position of the respondent’s counsel, that the bequest of the personal estate in this case is specific, cannot be sustained. The bequest is not specific within the meaning of any authority brought to our notice. The language is: “I bequeath all my personal estate to my brother Selim E. Wood-worth.” The language is as general in its terms as it could well be. And there is nothing else in the will to indicate any intention to make it in effect specific—nothing to indicate a design to exempt it from the payment of the debts or to disturb the order of payment established by the law itself. It is given to the executor—a circumstance which is regarded as very important in many cases to show that there was no intent to exempt it, when there are other circumstances indicating such a purpose. But this circumstance is, perhaps, of less significance under our law, where the consequences of not
By section one hundred fourteen of the Probate Act, the executor or administrator has a right to the possession of the real as well as the personal estate, and may receive the rents and profits of the real estate until the estate is settled up and delivered over to the heirs and devisees by order of the Probate Court. But this section does not of itself make any change in the order in which property shall be applied in payment of the debts. 'The title at the moment of the death of the testator, or intestate, vests in the heirs and devisees, subject only to the lien of the executor or administrator, for the payment of the debts and expenses of administration, with the right in the administrator of present possession, which continues till the estate is settled or delivered over to the parties entitled by the order of the Probate Court. (Beckett v. Selover, 7 Cal. 288; Meeks v. Hahn, 20 Cal. 627; Updegraff v. Trask, 18 Cal. 459; Redfield on Wills, Pt. II, 592.) The possession with the right to collect rents is only given to the executor or administrator to enable him to settle up the affairs of the estate in the mode prescribed by law. But no change necessarily results in the order of application of the' funds from this provision or any provision merely making real estate assets. But section one hundred fifteen expressly provides that “ the personal estate of the deceased which shall come
This section expressly adopts the order, so far as the personalty is concerned, established by the common law. The real estate is made assets,in case it should be required, not otherwise, and the order of priority is not changed. But it does not follow that the rents of the real estate go into the mass of the general personal estate. Undoubtedly, if required to pay the debts, as between the creditors and heirs or devisees, the rents received after the death of the testator would be applied before a sale of the real estate. But it by no means follows that, as between the general legatee of the personal estate, or the heir in case it is not bequeathed, and the devisees of the real estate, the rents would not belong to such devisee. On the contrary, it would seem to follow that, as the title vests in the devisee at the moment of the death of the testator, subject only to payment of the debts in the order prescribed by law, the rents of the land would belong to the owner of the land, subject to payment of the debts in the same order; and this, we think, is the case, unless there is some other provision affecting the question; that is to say that the rents of the real estate accruing subsequent to the death of the testator, for the purpose of marshalling the assets, should be regarded as belonging to the realty from which they were derived. Such was the rule at common law, and no change in this respect appears to be intended. Even specific legacies of personalty carry any accessions by way of increase or interest accruing after the death'of the testator. (Redf. on Wills, Pt. II, 566, par. 4.) But if it should be necessary to resort to the realty, then the rents collected from it should first be exhausted before a sale of the realty itself. There is nothing in sections one hundred fifty and one hundred fifty-one in conflict with these views. The executor has no more right to sell personal than real estate, unless necessary for its preservation, or to pay charges upon it. Personal estate not
Where a sale of real estate is necessary, “ if it appear that any part of such real estate has been devised, and not charged in such devise with the payment of debts or legacies, the Court shall order that part descended to the heirs to be sold before that so devised.” (Sec. 163.) Thus, in this respect, also, the order of priority established at common law is rigidly followed. Section one hundred seventy-six only recognizes the power of the testator, which existed at common law, to charge legacies upon real estate, and when so charged, and the personalty, which is to be first appropriated notwithstanding such charge, is insufficient, provides for enforcing it. Section one hundred seventy-seven recognizes the power of the testator, which we have seen also existed at common law, to change the order of priority by express provision or other clear manifestation of his intent in his will. The section itself does not profess to change the order, but leaves it to the testator to do so, if he sees fit; just as he could at common law, and in precisely the same mode; thus, so far, manifesting no intent on the part of the Legislature to change the order, but on the contrary, by express recognition, manifesting an intent to leave the matter just where the experience of ages had established it. Section one hundred seventy-eight provides for car
These are all the sections of the Act relating to the “ estates of deceased persons” supposed to bear upon the question brought to our notice, except sections one hundred eighty and one hundred eighty-one, which will be hereafter considered in the course of this opinion; and thus far it is quite manifest that the author of these several provisions was profoundly versed in the established principles of common and equity law applicable to the subject, and that he cautiously avoided making any change in the order of priority in the marshalling of the assets as between legatees, devisees and heirs. Such, we are persuaded, must be the conclusion attained by any jurist who thoroughly and critically examines the subject.
It is further claimed that section fifteen of the “ Act concerning wills ” requires the devisees of lands incumbered by mortgages to take them cum onere without any right to have them exonerated out of the personal estate. The section is as follows: “A charge or incumbrance upon any estate for the purpose of securing the payment of money or the performance of any covenant or agreement shall not be deemed a revocation of any will relating to the same estate which was previously executed, but the devises and legacies therein contained shall pass subject to such charge or incumbrance.” (Belk. Prob. Act, p. 209.) It is plain, however, that no such object was- contemplated or provided for in this section. The object was simply to provide in express terms that a subsequent mortgage should not be construed as a revocation of the will as to the mortgaged land—that it should still go to the
Thus far we have seen that the long established rule of priority in marshalling the assets, as between legatees, devisees and heirs, has not been disturbed by our statute. It follows that as between the legatee of the personalty, and the devisees of the realty, the executor was not authorized to appropriate the rents of the real estate accrued subsequent to the decease of the testator, to the satisfaction of the mortgage debt in exoneration of the personalty.
It is next insisted that if the devisees of the real estate incumbered by said mortgage did not take it cum onere, as claimed by respondents, then, under sections one hundred eighty and one hundred eighty-one of the Probate Act, the legatee of the personal, and devisees of the real, estate must contribute to the payment of the debts “ in proportion to the value -or amount of the several devises or legaciesand this view we think correct.
The sections are as follows:
Sec. 180. The estate, real and personal, given by will to any legatees or devisees, shall be held liable to the payment of debts, expenses of administration, and family expenses, in proportion to the value or amount of the several devises or legacies, except that specific devises or legacies may be exempted, if it shall appear to the Court necessary, to carry into effect the intention of the testator, if there shall be other sufficient estate.
Sec. 181. When the estate given by any will has been sold for the payment of debts and expenses, all the devisees and*610 legatees shall be liable to contribute according to their respective interests, to any devisee or legatee from whom the estate devised to him may have been taken, for the payment of debts or expenses; and the Probate Court, when distribution is made, shall, by decree for that purpose, settle the amount of the several liabilities and decree how much each person shall contribute.
At common law it is the settled rule that all devises of real estate are to be regarded as specific. “ Every devise of land is specific. Every legacy of personal estate is not, because personal fluctuates and varies. Land does not, for no more passes by a will than the testator had at the time of making his will.” (Forrester v. Lord Leigh, 1 Amb. 173.) “ Every devisee of land is as a specific legatee, and should not be broken in upon or made to contribute toward a pecuniary legacy.” (Clifton v. Burt, 1 P. Williams, 679.) [This case also shows that a specific legacy and a devise of land, which is in its nature specific, stand upon the same footing as to contribution to pay a pecuniary legacy; and that neither contribute, for the reason that they are specific.] “ Every devise of land, whether in particular or general terms, must of necessity be specific from this circumstance—that a man can devise only what he has at the time of devising, * * * but it is quite different as to personal estate.” (Howe v. Earl of Dartmouth, 7 Ves. Jr. 147; Milnes v. Slater, 8 Ves. Jr. 305; Redf. on Wills, Pt. II, 471.) The case of Spong v. Spong would seem, at first view, to make an exception, when the will, in express terms, makes it residuary. (1 Dow & Clark, 377; 3 Bligh, N. S. 102.) But the exception seems to be repudiated and the case explained on other grounds in Mirehouse v. Scaife, 2 My. & Cr. 695. A devise of real estate, then, is always regarded as specific; and it is said that this must be so .of necessity, for no lands will pass except such as the testator has at the time he makes his will. After-acquired lands will not pass, but after-acquired personal estate does pass. “ The devise of one’s household goods will pass all household goods
. A bequest of goods in a particular house, or at a particular place—as in a particular county or town—is specific. (See authorities before cited.) So of lands, for similar reasons, owned at a particular time, as at the date of the will. By a sale of the lands or any portion of them owned at the date of the will, the result to the devise is the same as when an article of personal property 'specifically devised is adeemed—it is gone. And this is one of the criteria of a specific legacy or devise. Other lands purchased with the moneys derived from the sale cannot be substituted. A republication of the will is necessary to pass them. So any change, alteration or remodelling of the estate extinguishes the devise. A devise of land is, therefore, specific, and this fact, and the reasons upon which it is grounded, are followed by important consequences, bearing upon the construction of the sections under consideration. The fact that a devise of land is always specific seems to be the real reason for placing lands devised after lands descended —in fact, in the class to be last charged with debts. Says Judge Redfield in his recent work on wills: “ The most obvious and the chief reason why descended estates have been held liable before devised estates is that every devise of real estate is regarded as specific.” (Pt. II, 870, par. 20.) Specific legacies and specific devises, therefore, stand upon the same footing, and for the reason that they are both specific, and, in reality, belong to the same class. Neither is to be charged till all the rest of the estate, both real and personal, is exhausted. So, also: “ Where the devise of the personal estate, and also of the real, is specific, both must contribute to the payment of debts pro rata.” (Redf. on Wills, Pt. II, 872, par. 23; Long v. Short, 1 P. Will. 403.) In Long v. Short,
Under our statute, if necessary for the purpose, all the estate of the testator is made assets in the hands of the administrator for the payment of all debts of every kind, whether simple contract, specialty debts, or otherwise, or whether charged upon particular estates or not. One class of creditors is not to look to the executor alone, and another class, in default of assets in the hands of the executor, is not obliged to follow the heir, devisee or specific legatee. The entire estate, real and personal, is liable in the hands of the executor to the charge of all the debts. Again—section twenty-two of the Act concerning wills provides that “ any estate, right or interest in land acquired by the testator, after the making of his or her will, shall pass thereby and in like manner as if it passed at the time of making the will, if such shall manifestly appear by the will to have been the intention of the testator.” (Belk. Prob. Act, 211.) Uow a will made under this provision, by which a party should devise all the land of which he should die seized or possessed, it is obvious, would have none of the characteristics before stated of a specific devise. A party might sell and convey land owned at the date of the will, and with thé'proceeds purchase others, and repeat the operation continually, and those lands, owned at the moment he should happen to die, would pass by the will—would take the place of those conveyed. Personal and real estate would stand upon the same footing in this respect—a devise of all one’s personal, and all of one’s real estate of which he should die possessed, would be equally general, and operate precisely alike. The grounds upon which a devise of real estate was held to be always specific have ceased to exist. Judge Redfield says, with respect to the rule that all devises of real estate are necessarily specific: “ But this only extends to the case of countries where the testator can only dispose by will of such real estate as he is seized of at the date of his will, and not where, as by the recent English statute, and those of most of the American States, one may dispose of all his real estate at
We may have, then, under our statute, the condition of things before supposed, lands and personalty, both being assets in the hands of the executor, liable to all the debts, and both generally devised, and, therefore, like specific legacies and devises, chargeable with the same debts, standing upon precisely the same footing, so far as the reasons for charging them pro rata are concerned. We should, therefore, naturally expect that the Legislature, after having gone thus far, would go still further, and in case of such general devises of both personal and real estate, wherein the testator has not seen fit to indicate any preference for one class of devisees over another, provide for a pro rata contribution. Especially so in a country like this, where real estate is regarded with little more favor than personalty. And we think this is precisely what has been done in section one hundred eighty of the Probate Act, before quoted. It having been provided in the Act concerning wills, that there might be general devises of real, as well as personal estate, the first part of the section, that “ the estate, real and personal, given to legatees or devisees, shall be held liable to the payment of debts * * * in proportion to the value of the several devises or legacies,” manifestly refers to such general devises; for it immediately thereafter adds, “ except that specific devises or legacies may be exempted, if it shall appear to the Court necessary to carry into effect the intention of the testator, if there be other sufficient estate;” thus still recognizing the right of the testator to make his devises or legacies specific, and thereby exonerate them, providing his estate is sufficiently ample to admit of such devises. Indeed, it would seem that a devise of
The will now in question is very brief, and very general in its terms. The testator bequeathed all the personal property and “ one half of all the real estate of which ” he should “ die possessed,” to the respondent, and made him executor, and the remaining half of the real estate to the appellants. There is nothing said about debts, no indication of any desire or intention that one class of devisees should be charged with the debts rather than the other.' The devises are all general. The testator must be presumed to have known the law, and the consequences which would follow a want of being more specific, and to have intended the consequence which the law attaches. We think that the real and personal estate devised must contribute pro rata according to the provisions of section one hundred eighty. It is the precise case provided for in that section. Indeed, the consequence would, perhaps, have resulted from the statutory provision authorizing general devises of real property without the provision expressly made in section one hundred eighty.
Some of these questions were not passed upon by the Probate Court, and do not properly arise in the present stage of the proceedings, but their determination is necessary to a proper distribution of the estate about to be made, and they would, doubtless, soon appear here again on appeal by one side or the other; and the parties have presented the questions, and expressed a desire to have them disposed of now.
There being a large amount of personal property of the estate in the hands of the executor applicable to payment of the debts, the debt secured by mortgage, as between the lega
Order overruling exception reversed and cause remanded for further proceedings.
Concurrence Opinion
Sections fifteen and twenty-two of the Act concerning wills, and sections one hundred and fourteen, one hundred and fifteen, one hundred and sixty-three, one hundred and seventy-six, one hundred and seventy-seven, one hundred and eighty, and one hundred and eighty-one of the Act concerning the settlement of the estates of deceased persons, supply the law applicable to the general subject, and section twenty-two of the former and one hundred and eighty of the latter Act prescribe the rules applicable to the special facts of the present case. By section twenty-two of the Act concerning wills, lands acquired subsequent to the publication of the will may be devised in this State, and, by reason of this provision, devises of real estate are put upon the same level with devises of personal estate, with respect to the question whether they are to be deemed specific or general, when the legal effect and operation of a given will comes to be determined.
By the one hundred and eightieth section of the Act regulating the settlement of the estates of deceased persons, it is provided that specific devises or legacies shall be exonerated from the payment of debts, if the remainder of the estate is sufficient for that purpose. A testator may in terms charge a portion of his estate with the payment of his debts, or he may
It is clear, on inspection, that the will in this case makes no provision for the payment of debts in terms, for nothing is said upon that subject. It is also obvious that it contains no specific devises of personal or real estate. The will disposes of the entire estate, real and' personal, of which the testator may be possessed at the time of his death. Ho part of it is distinguished in any manner except by the terms real and personal. The latter, whatever it may chance to be at the date of the testator’s death, is devised in general terms to his brother Selim. One half of the former, whatever it may chance to be, is also in general terms devised to Selim, and the remaining half to the other parties named, share and share alike. To hold that these or either of them are specific devises within the meaning of the one hundred and eightieth section, and therefore exonerated from the payment of debts, would be to hold that every devise is specific unless accompanied by an explanatory statement that it is not so intended. Such being the true interpretation of the will, it follows that the debts are to be paid in the mode provided by the statute where such are the conditions.
By the one hundred and fifteenth section of the Act regulating the settlement of the estates of deceased persons, it is provided that the personal estate shall be first chargeable with the payment of the debts, expenses of administration and allowances to the family of the deceased, and, if the personal property is insufficient for that purpose, that the real estate,
The claim of the respondent in this connection, that the rents and profits of the real estate, coming in subsequent to the death of the testator, are personal property, in the hands of the executor or administrator, within the meaning of the foregoing provisions of the statute, is without foundation. Under the Statute of Descents, and under the will, if there is-one, if not otherwise provided, the entire estate, both real and personal, with all accretions, vests in the heirs and devisees immediately on the death of the testator or intestate, subject only to the lien of the executor or administrator for the purposes of administration, and hence, if not required for that purpose, the subsequent rents and profits go to the party who takes the land from which they issue. Undoubtedly, after ithe personalty, the rents and profits must be exhausted before the land can be sold; for although, so far as I have been able to discover, the statute contains no express provision to that effect, yet an intent not to sell the lands, except as a last
Where, as in the present case, the entire estate, both real and .personal, has been devised without any provision in the will as to the payment of debts, the course to be pursued is described in the one hundred and eightieth section. It is there provided that: “The estate, real and personal, given by will to any legatees or devisees shall be held liable to the payment of debts, expenses of administration and family expenses, in proportion to the value or amount of the several devises or legacies, except that specific devises or legacies may be exempted, if it shall appear to the Court necessary to carry into effect the intention of the testator, if there shall be other sufficient estate.” As we have already seen, the will contains no specific devises or legacies, and it results that the devisees under the will, or rather their respective shares, must contribute to the payment of the debts and expenses in proportion to their value.
For these reasons I concur in the judgment.
Concurrence Opinion
I concur in the judgment on the ground that the statute furnishes the rule of decision of the point in question.