5 Del. Ch. 161 | New York Court of Chancery | 1877
It is a general rule—a settled rule that the personal estate is the primary fund for the payment of funeral and testamentary expenses, debts, and legacies; .and this general rule must in every case be applied unless there appears from the whole or some part of the will that a testator intends that his real estate or its proceeds, either of rents or moneys raised upon the faith of it, or by sale, or in some other manner, shall be charged with their payment; and unless it further appears, in like manner, that he does not intend that his personal estate shall be charged with their payment. It must satisfactorily appear that he not only intends to" charge his real estate or its proceeds, but that he intends to discharge his personal estate from their payment. It was .formerly held that this intention must appear from express words in the will. This doctrine is nowhere maintained at the present day. Had it been strictly adhered to, and not departed from, much litigation would have been ■saved, and judicial decisions upon this subject would have been much more uniform and consistent. Courts have used different forms of expression in determining the rule to be applied in the solution of the question of primary liability between the personal and real estate. Some judges have said that the intention to make the real estate the primary fund must appear by implication plain ; others, by intention clear; others, by irresistible conclusion; others, that the mind of the judge must be convinced that he is deciding according to what the testator intended ; others, that the evidence of intention to charge the real estate and to discharge the personalty must be sufficient to satisfy the judicial mind. It was doubtless the intention of the testator in this case that every provision of his will should be carried into effect. He intended that his funeral expenses and debts should be paid;
Do the words “ all my personal property ” have a fuller or more extensive meaning than the words “ my personal property?” Do not the latter words mean the same as-the former? Under certain circumstances, the word “all,” before personal property, appears to have been considered as-of considerable importance, and as showing an intention to bequeath such property as a whole, and not as a residue. In Viner’s Abridgment, vol. 8, there is a case in which the testator gave all his personal property to his wife, and £500 out. of the proceeds of the sale of his real estate, and devised his-real estate to trustees to be sold for the payment of his debts, and legacies. Ghcunoellor Harcourt decided in that case that the real estate devised for the payment of debts and legacies', was the primary fund for their payment, and remarked that it was manifest the testator thought that all his personal estate-was not sufficient for his wife, and therefore he gave her £500' out of the proceeds of the sale of his real estate. It will be observed, however, that in that case the real estate was-expressly devised to trustees to be sold for the payment of’ debts and legacies, of which the legacy to the wife was one.. This—which, however, would only ordinarily have made the proceeds of sale auxiliary to the personal estate for the payment of debts, and not the primary fund for their payment.
Mr. Jarman, after reviewing the cases relating to this subject, remarks : “ They authorize the proposition that whenever the personal estate is bequeathed in terms as a whole, and not as a residue, and the debts, funeral and testamentary charges are thrown on the real estate, this constitutes the primary fund for their liquidation.”
I know of no case, however, where it has been held that the bequest of personal estate, in terms, as a whole, and not as a residue, has been sufficient to make the real estate the primary fund for the payment of debts and legacies, when those debts and legacies have not been thrown upon the real ■estate otherwise than by the mere bequest of the whole or all of the personalty. They are not so thrown in this case, unless the intention that such a result should follow appears from a proper construction of the words “ the balance of my estate,” in item 4 of the will. Do those words have the effect, when taken in connection with the word “ all,” in item 2 of the will, to throw the debts, legacies, and funeral charges upon the real estate primarily, and in exoneration of the personal estate? What is the meaning of those words, and to what have they relation ?
In my opinion the words “ balance of my estate ” mean, primarily, his real estate, or the balance of the proceeds of the sale of his real estate, after deducting from said proceeds of sale any sum or sums with which those proceeds have antecedently been charged; that the only primary charge upon those proceeds,—pretermitting, for the present, the question as to the legacy to Dillon Hutchinson,—is the sum of $3,500 bequeathed to his wife; and that, the personal estate being the primary fund for the payment of the funeral expenses and debts, the personal estate must first be exhausted before recourse can be had to this balance. If, after the payment of the debts, funeral and testamentary expenses out of the personal estate, there should be a deficiency, in whole or in part,
That question, however, is not now before the court. It ■can only be raised in a proceeding to which the legatee and the devisees of the balance of the estate shall be parties. I decline, however, to enter any decree unlegs it be for dismissal •of the bill, upon two grounds: (1) the bill is filed by the executor of a legatee for direction to the administrator cum testamento amnexo of the testator how to administer the estate, and not by the administrator asking such direction; and (2) the bill contains no sufficient prayer for relief.
The parties having agreed that the bill should be amended so as to present a case for final decision, it was not dismissed, and the cause was continued with leave to amend according to the agreement of the parties, to be subsequently filed. Afterwards, at the February Term, 1877, the bill having been amended as per agreement filed, and the cause being submitted without further argument,—
The Chancellor said : I adhere to the views heretofore expressed by me in respect to the primary liability of the testator’s personal estate for the payment of debts, funeral •and testamentary charges. I must, in the language of Sir B,. Malins, V. C., in Powell v. Riley, 12 Eq. Cas. 178, attribute to the testator the knowledge that his personal estate was the primary fund for the payment of his debts. With this knowledge he made his will, and nowhere therein declares, either expressly or by “ implication plain,” that he means to charge the real estate devised to his brothers with the payment of his debts, or that he means to exonerate his personal property therefrom.
The will of the testator must, however, be reasonably interpreted. Having provided that his just debts and funeral expenses should be paid as soon after his decease as possible,, and then having given all his personal property and S3,500out of the proceeds of the sale of his real estate to his wife,, there remained nothing out of which to pay the legacy of $500 subsequently given to Dillon Hutchinson, except the* “ balance of his estate,”—the proceeds of the sale of the real estate after the $3,500 should be deducted. The $3,500 has-been paid by the person having the administration of the-estate of William Gooch, with money advanced by the devisees of the real estate. Dillon Hutchinson has died since the commencement of this suit, but his administrator is entitled, to receive, out of what the testator calls the “ balance of his-estate,” the legacy of $500, with interest thereon, or such part thereof as has not been-paid.
I therefore direct that a decree be drawn for the payment-to the executor of Tamar Gooch, by the administrator of William Gooch, deceased, of the balance of the personal estate-of said deceased, after paying the just debts, funeral expenses,, and testamentary charges appearing on the account filed in this cause, with interest from the time when the same should, have been paid, together with the costs in this cause, within, three months, or attachment.