29 A. 688 | R.I. | 1894
The homestead farms of Benjamin W. and Elisha Mowry having been specifically devised to Nathaniel S. Mowry in fee after the life estate specified in their wills, without any limitation or condition, and nothing appearing in said wills or either of them to show an intention to charge said real estate with the payment of the legacies in question, the complainant had notice thereon, nor has he any lien on the proceeds of the sale thereof now in the hands of the respondent, for the payment of his legacies. By specifically devising this part of their property, the testators evidently intended, as between the objects of their bounty, to separate that part of their property from the rest, and that it should not be subject to the other provisions of their wills. Indeed, it has been held that where the testator after making certain specific devises and bequests, gave some pecuniary legacies, and charged "all his real and chattel estates and property of every description," with payment thereof, and subsequently devised all "the residue of all his real and freehold estates, goods and effects of every kind" to A. in fee, the charge of legacies did not extend to the estates specifically devised. Conron v. Conron, 7 H.L. Cas. 168. "The true rule," said Lord Cranworth in this case, "deducible fromSpong v. Spong, 1 Dow C. 365; 3 Bligh, N.S. *630
84, is that a mere charge of legacies on the real and personal estate (and `on all the real and personal estate' must mean exactly the same thing) does not of itself create a charge on any specific devise or bequest. I think that the rule is a very reasonable one, and is likely to be, in general, conformable to the intentions of testators." See 3 Jarman on Wills, 5th Am. ed. 432, 433; Davenport v. Sargent,
The residuary clause of each in the wills now before us is as follows, viz.: "Ninth, I give, devise and bequeath unto my cousin, Nathaniel S. Mowry, all the rest and residue of my estate, of every nature and kind and wherever situated, lying or being, if any there be to be and remain to him, his heirs and assigns forever."
The bill shows that the testators owned real estate in addition to their homestead farms specifically devised as aforesaid, which passed to said Nathaniel under the residuary clause. This being so, we think it is clear that the complainant had a lien thereon for the payment of his legacies, under the well settled rule that where there is a bequest of legacies followed by a gift of the residue of the testator's property, real and personal, the legacies are charged on the realty thereby devised. In such cases it is considered, as said by Lord Campbell in Greville v. Browne, 7 H.L. Cas. 689, "that the whole is one mass; that part of that mass is represented by legacies, and that what is afterwards given, is given minus *631
what has been before given, and therefore given subject to the prior gift." See also Lewis v. Darling, 16 How. 1; Francis
v. Clemow, Kay, 435; Carroll v. Hargrave, 5 Ir. Eq. 123; Roper on Legacies, Vol. I. 673-675; 3 Jarman on Wills, 5th Am. ed. 430; 13 Amer. Eng. Encyc. of Law, 607, and cases in note 2; Schouler on Wills, § 522; First Baptist Church of Hoboken v.Syms, 28 Atl. Rep. 461; Gould v. Winthorp,
And the complainant having had a lien on said last mentioned real estate for the payment of his legacies, he now has a lien on the proceeds of the sale thereof in the hands of the respondent, as trustee thereof, for the same purpose.
But the respondent contends that the complainant has no lien on the proceeds of the sale of said real estate because the former, as administrator, in making said sale under the decree of the Probate Court, sold only the interest therein of said Nathaniel S. Mowry at the time of his decease, and hence the lien of the complainant thereon, if any he had, was not affected thereby. That is to say, the contention is that the lien, if any existed, was in the nature of a mortgage upon said estate, and that the administrator could only sell the equity of redemption; and as the proceeds of such sales would only represent the equity, the lien would not be affected. The purpose of the bill, however, is not to establish a lien upon said real estate, but upon the proceeds of the sale thereof in the hands of the respondent as trustee for the complainant. In other words, the complainant is seeking in this manner to enforce the payment of his legacies out of the residuum of the estates devised to said Nathaniel, as he has the right to do. And there being no debts of the testators or either of them, so far as appears, we see no reason why he may not follow the proceeds of the sale, if he sees fit, for that purpose: instead of resorting to the estate itself. In short, the complainant has the right to enforce the payment of the legacies out of any part of the property of the testators, not required for the payment of their debts, which *632 came to said Nathaniel under the residuary clause of said wills.
We fail to see the force of the contention of respondent's counsel that the fact that the complainant has proved his claim before the commissioners in insolvency on the estate of said Nathaniel S. Mowry, estops him from now claiming said lien. No one has been prejudiced by said act, or led into a line of conduct different from that which he would otherwise have taken. And the very essence of the doctrine of estoppel is, that the action or non action complained of must have led the party setting up the same into a course of conduct which would be prejudicial to his interest, unless the other be cut off from averring a different state of things as existing at the same time. In other words, the party invoking the aid of this doctrine must show that he would be injured by permitting the other party to the transaction to take a different position from that which he occupied at first. See Gleazen v. Farrington,
We are therefore of the opinion that the complainant is entitled to the relief prayed for, to the extent above indicated.
