78 A.D. 596 | N.Y. App. Div. | 1903
This appeal challenges the decision of the Special Term that the debts of the mother of the testator were charged upon the real estate of the testator. The will provided: “First. I order and direct that all my just debts be paid as soon after my decease as can be conveniently done. Second. After all my just debts shall have been paid I order and direct that all debts of my mother which shall remain unpaid at my death shall he paid out of my estate.”
The provision for the payment of the debts of the testator is to discharge obligations charged by law. That for the payment of her mother’s debts is a bounty given to those creditors by the testator. Therefore, the two kinds of debts are not to be classified together simply because this estate is to discharge them, but I think that the provision for the payment of the mother’s debts should rather be considered as analogous to a provision for a legacy. The executors took a qualified legal title to the personalty and are regarded as trust tees for the benefit of the creditors and the distributees (Blood v. Kane, 130 N. Y. 514, 517; Redf. Surr. [5th ed.] 518), and these creditors may be regarded as beneficiaries entitled to distribution pursuant to the terms of the testament. As a legacy cannot be charged in part or in whole upon the realty unless the intention of the testator be manifest, the precise question is whether there was such intention. This must be shown “ by the will itself, or in certain cases may be made to appear by proof of extrinsic facts, such as the condition of the testator’s estate at the time-he made the will.” Express direc. tion is not essential; it is enough that the intent can be gleaned from all of the provisions of the will. (Cullen, J., in Dunham v. Deraismes, 165 N. Y. 65; Morris v. Sickly, 133 id. 456; Brill v. Wright, 112 id. 129.) In the absence of express direction, the intent must be “ either expressly declared or fairly and satisfactorily inferred” (Kent, C., in Lupton v. Lupton, 2 Johns. Ch. 614); it must be “clear” (Folger, J., in Taylor v. Dodd, 58 N. Y. 335, and Bevan v. Cooper, 72 id. 317, 322); it must be “ clearly inferred ” (Bradley, J., in Matter of Powers, 124 id. 361, 368); it must be “clear” and “manifest” (Hosmer, Ch. J., in Swift v. Edson, 5 Conn. 531); it “ must be clear upon the words ” (Story, J., in Wright v. Denn, 10 Wheat. 204, 229).
The learned Special Term said that there were no extrinsic facts to help interpretation, and I think that this view was substantially right. The will was executed in March, 1897, and the testator died in October of that year. One of the executors was asked by the
The learned counsel for the respondent contends that the use of the words “my estate” suffice in themselves to.establish the intent to charge these debts upon the realty of the testator, citing Taylor v. Dodd (supra). There is an argument based upon the character of the provision which makes against the contention. When a
In Taylor v. Dodd (supra) the court did not base its decision solely upon the effect of the words “ my estate.” It did say that the words “ are broad enough in signification to cover all property, whether real or personal,” citing authorities, and that these words “ will have that effect in a clause in a will, unless controlled by words or phrases found in connection or relation with them, or by considerations drawn from other parts of the will.” But the court also said : “ But such phrase does not of itself directly and explicitly, and without room for other interpretation, express that meaning; and I am unable to discover any reason why the testator should attach it with that intent to three only of the bequests of money and withhold it from the other fourteen.” A reading of the full opinion shows that the decision was not put solely upon the force of the words “ my estate,” but upon the use of them (being words sufficiently broad) in juxtaposition with other words and read together with other provisions. Thus the learned court say that the words in the will then considered are sometimes found in juxtaposition ■ with the words <£ real estate,” so as to lead to the conclusion that
In Nixon v. Cameron (26 Ch. Div. 19), where the implication was sought to be raised from a direction that the first pecuniary legacy be paid out of “ my estate,” Selborne, L. C., said: “ It was insisted that the words ‘ my estate ’ thus used, comprehended real estate; as they no doubt might if a testator gave ‘ all his estate ’ to his executors, or to any other devisees. But when an implication adverse to the heir-at-law is sought to be raised from a mere direction for payment of legacies, it is necessary to consider whether the words are not sensible without any such implication. The whole personal estate vests by law in the executors; the real estate does not. The personal estate, not specifically bequeathed, is generally the proper fund for the payment of pecuniary legacies. When a testator directs his executors to realize for the payment of
In Swift v. Edson (supra), when the testator had bequeathed pecuniary legacies to be paid out of her estate, the court said: “ Charges on land in favour of a legacy are usually made by the expression ‘ to be paid out of my lands,' or in other forms of phraseology manifesting a clear intention ; but the expression in a last will, made by a testatrix, who had sufficient personalty to pay all her pecuniary legacies, that they should be paid, by her executor, out of her estate, is nothing more than what the law implies. * * * Now, although the word estate is very comprehensive, where the subject-matter demands it, and includes real as well as personal property, yet where the executor is directed to make payment out of a fund, it must be intended out of that fund over which he has control.” As the testator employed words generic enough to include the realty, but not of such inherent force as conclusively to manifest the intent, we must consider the entire will.
The testator did not charge the payment of her own debts upon her realty. Though this may not have been ultimately necessary, yet the omission is more or less significant. Again, no power of sale whatever is conferred upon the executors. Such omission also is strong against the contention of the creditors in this case. (Brill v. Wright, 112 N. Y. 129.) Even if she had charged her debts upon the realty, the power of sale would not have been implied. (Matter of Fox, 52 N. Y. 530.) Would the testator have intended that the real estate should be charged with the payment of her mother’s creditors, and yet omit the natural and further provision for the conversion of the realty ? The testator gave a pecuniary legacy to an old servant, without any expression of intent that it should be charged upon the realty. Did she intend to provide for the full payment of the creditors of her mother to the exclusion of this legacy ? Did she intend to prefer such creditors in full to the exclusion of her stepdaughter, and her blood relatives ? As pointed
Goodrich, P. J., Bartlett, Woodward and Hirschberg, JJ., concurred.
Interlocutory judgment reversed and new trial granted, costs to abide the final award of costs.