17 Ala. 134 | Ala. | 1849
This bill was filed by the defendants in error to recover legacies bequeathed to them by the last will of Joseph L. D. Smith. By the first clause of the will the testator directed that all debts should be paid as they became due: He then bequeathed to his wife his furniture, carriage and horses, and some slaves, and directed that she be supported
We do not think it material to enquire whether the legacies are vested or not. If we were to admit that they.were technically vested, so that the representatives of the legatee would be entitled to demand the legacy if the legatee himself would have been entitled to it, had he been living, still the question would be the same, and that is, whether the estate in the hands of the executors, after the payment of the debts, is of the value of eighty thousand dollars. It is on this contingency that the complainants are entitledto demand payment of their legacies.
It will be at once seen that the time of the valuation of the estate becomes an important enquiry, when the payment of legacies is made to depend on such valuation. For instance, if a legacy is directed to be paid on the condition that the estate is worth $50,000, after the payment of all debts — suppose the estate at the time of the probate of the will was worth this sum, over and above all the debts that the testator owed, but owing to losses for which the executor was not responsible, before the debts were all paid, the estate should become insolvent, could the executor be charged with the payment of this legacy ? All will answer that he could not, unless .the loss to the estate originated from some act or neglect of duty on his part. So if the estate at the time of the death of the testator would not be valued at a sum sufficient to pay the debts and leave a balance of $50,000, but from a sudden rise in the value of property, in a short time after the death of the testator and before the estate was administered, it was so increased in value that it could well pay not only the debts but also the legacies, could it be contended that the legatee could not receive payment of his legacy, because at the moment of the death of the testator, or at the time of the probate of the will, the estate would not have been valued by prudent men at a sum sufficient to entitle the legatee to demand payment? We think these supposed cases show the impropriety of fixing on the time of the death of the testator or
It may, however, be urged that to make the payment of the legacies depend on the valuation of the estate, after the payment of the debts by the executor, would enable him to postpone the payment to a distant day, and should the value of the estate be diminished in the meantime, the legatee may be defeated by the improper conduct of the executor. The cause as it is now presented to us does not require us to decide this question; but it may well be questioned whether the improper or negligent conduct of an executor can under any circumstances defeat the payment of a legacy as between him and the legatee, or postpone the time at which the legatee could demand payment. It is, however, contended that no event subsequent to the death of the testator can be considered in construing a will, and that we must give the same construction to this will, although the widow has dissented from it, that we would have given had she abided by it. To this argument we fully assent; but the construction of a will and whether there are funds to meet all its provisions, are-two very different questions. Subsequent events may diminish or increase the funds, but this increase or diminution
It may be proper, however, to add, that the interest of ihe testator in the Texas land was correctly excluded in taking the account, for it is very clear that the testator did not intend that his interest in Texas lands should be considered as a part of his estate in the hands of his executors.
Let the decree of the chancellor be reversed and the cause remanded for further proceedings.