Jones' Appeal

3 Grant 250 | Pa. | 1858

The opinion of the court was delivered

by Stkong, J.

The general rule, doubtless, is that an executor who receives rents of the real estate of a testator holds them in trust for the devisee. But the rule is not without exception. The testator may in his will, by express directions, order a different disposition of the rents, issues and profits of his real estate. So he may by implication, as when he places such real estate under the control of his executors for the purpose of paying debts or satisfying legacies.

It is evident that the testator in the will before us supposed it possible that his personal property might prove insufficient to pay his debts. He therefore gave to the executrix and executor control over his real estate, directing that they should prevent any sale thereof until his youngest child should attain the age of twenty-one years, unless necessary to pay his lawful debts, and in that case only so much as should suffice for that purpose. His intention seems to have been not alone to give a power to sell, but also the power to control and manage the real estate with reference to his first object, which was the payment of his debts. The executors, therefore, under the peculiar phraseology of this will, may properly be regarded as trustees of the realty, first, for the payment of debts, and then for the discharge of legacies.

The balance in the administration account was then properly applied in the first instance to the payment of the sum due the estate of Mrs. Jones, as settled by his account as executor.. That balance arose from her having paid debts of the testator to an amount greater than the personalty which came to her hands. By such payments she became a creditor of the estate, being subrogated to the position of the creditor whom she had paid. McCurdy's Appeal, 5 W. & S. 397; Wallace's Appeal, 5 Barr, 103.

It is perhaps not very material to inquire whether the interest given to the widow was a devise of lands as such, or a legacy of $3,500 00, charged upon all the testator’s real estate, so far as the personalty was inadequate to pay it. In either case the result seems to be the same, so far as regards the rights to the remainder of the money in the accountant’s hands. If it be a legacy, then it is not questioned that it draws interest, and that the balance in the hands of the administrator with the will annexed should be applied to the payment of the interest. If it be a devise of land, as in terms it appears to be, then the devisee is entitled to the cents, issues, and profits; and, the debts of the testator having been paid, the fund for distribution is composed of rents. Under the will, no portion of the widow’s $3,500 00 is to be applied to the discharge of debts until all the remainder of the real estate be exhausted. She is not a tenant in common with the residuary devisees. She takes by superior right, and they can claim nothing until she is satisfied. This view of the case justifies the decree of the Orphans’ Court, and it is therefore affirmed.

Decree of the Orphans’ Court affirmed.