2 Dall. 243 | Pa. | 1796
Lead Opinion
The court delivered their opinions seriatim.
minutely stated the will and case at large, and then proceeded thus :
In case of an intestacy, the rule of law is clear, that simple contract debts, bonds, mortgages and specialties of every sort, must be paid by the administrators out of the personal estate, this being the natural fund for debts, though the younger children should be thereby left destitute; but where there is a will, the testator can substitute other funds in the place of the personal estate. What .has Job Ruston willed in this particular ? is the question.
The intention of the testator shall 'govern in the construction of a will in all cases, except where the rule of law overrules the intention, and this is reducible to four instances. 1. Where the devise would make a perpetuity. 2. Where it would put the freehold in abeyance. 3. Where chattels are limited as inheritances. And 4. Where a fee is limited on a fee. Sel. Oa. in Cha. 31. And this intention must be collected from the whole of the will, or writing itself. 3 Burr. 1541,1581, 1662. 2 Burr. 771, 1106. 1 Vez. 231, and many other boobs.
What then was the intention of the testator, as expressed in his will ? The value of the real estate devised to the defendant, the quantum of his debts, and the amount of his personal estate at his death, would give considerable light in this matter. These have not been satisfactorily ascertained to us. However, we have been told that the debts, specific and pecuniary legacies, with the charges of administration, will amount to 3849/. 9s. 3and that the personal estate only produced 588/. 13s. 9d. so that if the defendant had paid the 3000/. there would have been a deficiency of 260/. 15s. 6fo?. and nothing left for the residuary legatees.
The defendant took possession of the lands so devised to him. This evidences his assent to pay the 3000/.; and the intention of the testator that he should pay it to the executors, is too plain to hear an argument. What rale of law or reason is there to prevent the executors from recovering it ? Suppose the devise to the defendant had been subject to the payment of his debts, instead of a certain sum of money, viz. 3000/., as in this case, the lands would he assets at law. The testator has subjected the gift to the payment of this sum, and it must pass cum onere.
I therefore consider the 3000/. as an equitable if not a legal charge, or as a trust and condition, which affects and binds the real estate devised to Thomas Buston, the eldest son, and which it was the manifest intention of the testator he should pay at all events. The defendant could not he considered in this case as heir at law in Pennsylvania, where, if at that time a person had died intestate, leaving divers children, his real estate would have descended to all his children equally, the ■ eldest son having only a double portion or share, and therefore the devise may even be considered asa condition. Forrest. 271. 1 Atky. 383. 3 Wms. 325. The same judgment was given by all the then justices of the Supreme Court, above five years ago, between the same parties, on a case stated on this very point, which I deem conclusive.
But the second question, respecting the payment of the mortgage on the 218J acres, is new.
It appears to have been the intention of testator, that the legacies, specific and pecuniary, should he paid, as well as that the devise of the real estate should take effect; and, if practicable, the assets should he so marshalled, that the testator’s intention in the whole should ho carried into execution. The testator seems to have thought the 300/. would have been sufficient to have discharged all his debts, and also the particular pecuniary legacies, (by which I mean those given to his widow and children in full of their respective shares of his real estate,) hut in this he has been mistaken.
A mortgage is a debt; it arises on a loan, and there is usually
It is the constant practice in chancery, to allow to children the same favor as creditors. Forrest. 275. I therefore think that the specific and particular pecuniary legacies, bequeathed to the children, ought not to be brought in ease of the particular lands mortgaged; but it seems to me that the devise of the residuary part of the personal estate should give way to the devise of the real estate subjected to the mortgage, and be applied as far as it will go in discharge of the mortgage. For the devisee of the real estate must take it cum onere, that is, subject to the mortgage, unless the residue of the personal estate will be sufficient to discharge it. Yid. Grilb. Equ. Rep. 72. Forrest, 202. 2 Atky. 280. 1 P. Wms. 694, 730. Prec. Cha. 578.
Concurrence Opinion
The first point has already been determined in this court, and I concur in that resolution.
On the second point I am of opinion, that the personal estate should not go in ease of the mortgaged premises, so far as to interfere with, or defeat the specific or pecuniary ascertained legacies ; but on a fair examination of the authorities, I think the residuary legatees are not entitled to the same advantage.
On the first point, it was clearly the intention of the testator, that the 3000Í. should be raised at all events. The defendant accedes to his father’s terms, and submits to the'monied charge by his entry on the lands devised to him. 3. Bro. Oha. Rep. 165.
But it is objected, that the proviso in the will does not form such a condition, as will warrant an entry on its breach, the defendant being the eldest son and heir at law under English ideas.
Independent of the local circumstances of the state, and the just equality which our whole system of legislative and judicial polity holds out to all the issue of one common father, and which therefore is materially distinguished from the English code, giving a preference to the eldest son, it may be answered, that in such a devise to the heir at law, the courts of Westminster Hall would construe that proviso as a
On the second question, the result of the cases in the books appears to be, that the personal estate of a testator shall in all circumstances, he first applied in discharge of his personal debt, or general legacy, unless ho by express words or manifest intention exempts it. 2 Atky. 625. 3 Atky. 202. 3 Wms. 324. 1 Bro. Parl. Cas. 192. Bunb. 302. 1 Bro. Cha. Rep. 144, 454. See 2 Wms. 664. Cox’s Note (1.) Forrest. 274.
So it is, although such personal debt be also secured by a mortgage as in 1 Wms. 291. 2 Salk. 449. 1 Vern. 36. 3 Wms. 360. 2 Atky. 436. 1 Vez. 251. 6 Bro. Parl. Cas. 520.
But the application of personal estate in ease of the real estate mortgaged, does not take place to the defeating of any legacy, either specific or pecuniary. 2 Wms. 190, 335. 1 Wms. 693, 680 (Cox’s Note) 730. Forrest 53.
Yet it is otherwise as to residuary legatees. 2 Wms. 335. 2 Vern. 477. And in the late case of Hamilton v. Worlsy et uxor (4 Bro. Cha. Rep. 204.) Lord Chancellor Loughborough says, “ The ground of the plaintiff’s claim is founded on “ the equity of this court, which enables a devisee to have an incumbrance upon the estate discharged as a debt payable out of the personal estate. The extent of that debt can never go further, than as against the heir, the devisee and the residuary legatee. It cannot interfere with any other creditors specific or pecuniary legatees. No other creditors are affected by it; for this court can never mean to extend this principle of equity farther, than as between those parties.” It is not pretended, that there are express words exempting the personal estate from payment of the mortgage. And the only remaining question to be considered, is, whether on a fair construction of the whole will, such intention can clearly be collected, or inferred from all its parts ?
Taking the mere words of the will, independent of the events, I cannot discover such intention. But from the statement furnished by the plaintiff’s counsel to the court, it appears, that excluding the mortgage .as a burthen on the land devised to the defendant, there would be a deficiency of 260/. 15s. 6§d. to pay the pecuniary legacies particularly ascertained, and also the unascertained residuum which the testator contemplates in his will. Exceptions however, have been filed against this statement, which will require examination, before the present question can ho finally settled.
In the language of Lord Tkurlow, “ Whether the personal
It is true, that in Stepenson v. Heathcote, (as cited in 1 Bro. Cha. Rep. 466, 467,) Lord Keeper Henley is made to say, that the intent of the testatoi1 in this particular, is to be collected from the words of the will, and from no circumstances out of it; and Lord Thurlow seems to adopt the same idea in 1 Bro. Cha. Rep. 462.
But for the reasons, I have already given, I consider myself at liberty to form my judgment, on these extrinsic circumstances ; and if it should hereafter appear, that the ascertained pecuniary legacies would be disappointed by the construction contended for by the defendant, as to any part thereof, I am of opinion, that the deficiency of of property to pay those legacies should bo made up by the devisee of the mortgaged premises ; and that as to so much of the encumbrance, the personal assets should not be considered as a fund for payment, in ease of the real estate. But the rule not holding as to the residuary legatees, I think this court can give them no relief.
This construction upon the best consideration which I have been able to give the case, appears to me the most effectual for carrying the general intent of the testator into full execution, as far as it can be' done, consistently with the adjudged cases. I could have wished to have found some case, wherein the rule in equity, as to the personal estate of a testator going in discharge of his personal debt or general legacy, has in the same will obtained in part, and been refused in part, pro tanto ; but' my searches on this subject, have proved fruitless, and I have therefore been constrained to take up the point before us on principle.
As the court have already declared their unanimous opinion, that the premises being devised to Thomas Ruston, provided ho pays to the executors 30001. in the manner prescribed by the will, he is bound, having taken possession of the land, to pay that sum, I will not enter into the consideration of that plain point, but proceed to
Question 2d. No case in point lias been cited, nor have I been able to find any, in the course of much research, in which it has been determined, whether where mortgaged land has been devised to a son, lie paying a certain sum of money amounting to more than four times the mortgage, lie takes the land, subject to the mortgage money besides; or whether the personal estate of the testator shall be applied to pay the mortgage, where pecuniary legacies bequeathed to the rest of his children would be thereby defeated in part and the residuary part entirely defeated; although the testator must have had in contemplation at the time of making the will, that the residuary part would be considerable, as be directed that it should be di vided into so many shares; the devisee of the mortgaged land being also one of the residuary legatees.
It therefore becomes necessary to select and state such general principles and adjudged cases, as are most applicable to the case before us, which may give us some assistance in forming a right judgment of it.
I must however say, with Lord Chief Justice Wilmot, “that cases iu the hooks upon wills, have no great weight with me, unless they are exactly in the very point;” (2 Wils. 324,) and all cases depen cling upon the intention of the testator, (which is the pole star for the direction of devises,) are best determined, upon comparing all the parts of the devise itself, without looking into a multitude of other cases.” 2 Burr. 1112. 3 Wils. 142. 2 Atky. 374. 3 Bl. Com. 382.
. However, in the construction of wills, adjudged cases may very properly be argued from, when they established general rules of construction, to find out the intention of the testator. 1 Bnrr. 233
1. Now it is a general rule, that the personal estate shall be first applied in the payment of debts and legacies, unless there be express words, or a plain intention of the testator to exempt it, or to give the personal estate as a specific legacy. 2 Atky. 625, 424. 1 Wils. 24. Pow. on Mortg. 374, 393. 1 Vez. 51. 3 Atky. 202. 1 Bro. Parl. Cas. 192. 2 Eq. Ca. Ah. 493. Bumb. 302. 1 Bro. Cha. Rep. 459 to 467, where all the authorities, which apply either in affirmance or deiñal of the doctrine, are thoroughly considered. Forrest. 53, (in note.) It is not sufficient that testator charge
2. It is the general doctrine of the Court of Chancery, that the honres faetus shall have the same benefit of the personal estate, in discharge of the real, as the hc&res natus. Forrest. 55, 274. Prec. Cha. 2, 3. 3 Bac. 638. Powel on Mortg. 370. 2 Fonbl. 196.
It was a long time before a devisee could prevail with chancery, to have the personal estate applied in exoneration of the real, as appears from many ancient cases, which distinguish in that casé between a devisee and an heir at law, though at last the devisee has prevailed, where no damage is done to a third person. Forrest. 54. Pow. on Mortg. 377, 379. Cornish v. Mew, 1 Cha. Ca. 271, is the last where the court refused to do it. The first case in which it was determined in favor of a devisee of part of the real estate only, was 2 Cha. Ca. 84. 1 Vern. 36. And this opinion of that great man, Lord Nottingham, has been followed ever since. 2 Atky. 436. 1 Equ. Ca. Ab. 270.
Thus the court has gone as far as is reasonable, viz. to put the hasresfactus in as good a plight as the haeres nai/us, but not in a better. Forrest. 55, (note.) Powel on Mortg. 379.
It is said, by the accurate Mr. Cox in his note on 1 ‘Wins. 680. that the application of the personal assets in ease of the real estate •mortgaged, does mot take place to the defeating of any legacy. To support this position, he cites Oneal v. Maed, 1 Wms. 693. Tipping v. Tipping, Ib. 730. Davis v. Gardner, 2 Wms. 190; and Rider v. Wager, Ib. 335. I will examine each of these cases.
Oneal v. Mead, (also reported 2 Equ. Ca. Ab. 556, pl. 19,) does not apply to the question before the court, nor is the case accurately stated.
In Tipping v. Tipping, the Lord Chancellor denied it to be a rule in all cases, that the personal shall be applied in ease of the real estate, for it shall not be so applied, if thereby the payment of any legacy will be prevented, much less where it will deprive the widow of her bona paraphernalia. S. C. 2 Equ. Ca. Ab. 499, pl. 20.
If the personal estate here had gone in ease of the real estate, it would have deprived the widow of her bona paraphernalia, and the point adjudged goes no further.
On this occasion I must be permitted to say, with the cautious and accurate Judge Foster, (Grown Law, 313,) that “general rules thrown out in argument, and carried further than the
In Davis v. Gardiner, the reporter at the end of the ease subjoins, if the testator had owed a debt, for which his real and leasehold estates were mortgaged, equity would have charged all this debt on the real estate, in order to have enlarged the fund for the pay ment of the legacies, as well as debts. S. C. 2 Equ. Ca. Ab. 499 p.l 24, note.
My observations on the former case apply hereto. It is also to be considered, that the court-deereed, that the real estate wras not liable; and that the personal estate was not sufficient to pay all the legacies to the daughters, but was enough to pay much the greatest part of them. In one respect the case is similar to that now before us. In each, the testator was in all probability mistaken in the value of his personal property.
In the close of Rider v. Wager, it is said to have been admitted by the counsel on both sides, that the land having been made by the testator himself a fund for the payment of the mortgage money, though the same should be eased against an administrator or residuary legatee, yet it should not be eased so as to disappoint any of the debts, or even legacies given by the will, either specific or pecuniary.
In the case before us, the land was not made a fund for the payment of the mortgage money, but was devised to the defendant, he paying 3000Í.; which sum was more than four times the mortgage money, and added to the inventory, was sufficient to pay all the debts, all' the specific legacies, and more than three fourths parts of the pecuniary legacies.
We find that land has been eased by the application of the personal estate, as against residuary legatees, Bung. 302. 2 Vern. 477. Powell on Mortg. 391, which it seems it would not be against legatees for certain sums. Ambl. 129. 4 Bro. Cha. Rep. 204.
3. The persona] estate shall be applied in exoneration of the real estate, where no damages is done to a third person, Forrest 54, where there is no prejudice either to a simple contract creditor or legatee. Ib. Pow. Mort. 377. 2 Fonbla. 299. But though a man mortgages land, and covenants to pay the money, and dies, the personal estate shall in favor of the heir be applied to exonerate the mortgage. So if there be no covenant, if the mortgagor had the money, because it was his debt and he was bound to make it good,
Legatee has a right to stand in the place of the mortgagee, to have satisfaction out of the real estate for what the mortgage shall exhaust of the personal. Ambl. 174. See 2 Cha. Ca. 4, 5. Forrest. 53, 54. Pow on Mortga. 377, 378. 2 Fonbla. 299, 300.
In one Bro. Cha. Rep. 454 to 467, the material cases upon this subject are recognized, and the circumstances which governed the decision of each are thoroughly considered.
The remark of Lord Chancellor Thurlow, (lb. 462,) how much , uncertainty abounds in wills of this kind, has been already quoted from the bench.
In the decision of such cases, the court seems to have adopted for the ground of its determination, -the distinguishing circumstances of each, without any direct reference to any general principle, as applicable to them all. Forrest, 211. William’s note.
The greatest judges have differed on this subject, and have even changed their own opinions. In 2 Atky. 439, Pow. Morga. 394, Lord Hardwicke was at first of opinion, that real estate descended was not liable to discharge a mortgage on a real estate devised, but afterwards altered his opinion on the particular circumstances of the case. In 1 Bro. Cha. Rep. 467, Lord Thurlow differed from Ashurst and Hotham, commissioners; and Lord Macclesfield and Lord Bathurst differed on the same point.
Upon the whole, therefore, it does not appear that there is any case the same in the point adjudged as the present \ and there being no well considered solemn decision, the court may resort to principles. Doug. 443. Pow. on Mortga. 91.
Froin a careful review of all the cases on this head, these general conclusions seem fairly to be inferred. Where mortgaged lands are devised to one (especially to one of the testators children,) and specified pecuniary legacies are bequeathed in the same will to others, (especially his other children,) if the application of the personal estate to the payment of the mortgage money, would defeat these pecuniary legacies in the whole, or in part, it shall not be applied, but the devisee shall so far take the mortgaged land own onere.
But as against an administrator, executor or residuary legatees,
Should it be said, that the first inference contradicts the general rule, that every devise of land is specific, and that a specific devise is never broken in upon to make good a pecuniary legacy; I answer, that, should unincumbered lands be devised to one, and certain specified pecuniary legacies be bequeathed to others, charged on other lands, or out of the personal estate, or out of both, and these other lands or personal estate, or both should prove deficient, that deficiency shall not be made up out of the land so devised. And 1 conceive that this is the meaning of the rule, and that it goes no further.
The conclusions which I have drawn, are fortified by the following observations.
The exoneration in favor of the heir arose from the heir being originally considered in the seat of the ancestor, and while the ancient tenures subsisted he was obliged to perform the services. 2 Atky. 435. But this reason for exonerating the heir does not hold in this state. Where an ancestor leaves more children than one, the term heir-at-law conveys no idea with us; they are all his eo-heirs. All are equally entitled, if he dies intestate, except that the eldest son has the first offer of the land if it cannot be divided; and that (at the time this will was made,) he was entitled to two shares; and it must be presumed, and they all are equally objects of the father’s bounty, where he does not expressly and clearly give a preference, or lay a burthen on his bounty to some, in order to exonerate others of them from a charge to which the estate devised to these last would be liable, unless thus exonerated. With us, such exoneration is not to be presumed.
I shall at all times pay a due regard to the laws, and the decisions of the courts of justice of that country from which we derive our jurisprudence, where they are applicable to this country. The better we are acquainted with them, the more firmly shall we be convinced that they contain the utmost exertions of human wisdom on the subject matter; but at the same time, I must bo permitted to own, that I do not feel my mind fettered by them in instances wherein they do not apply, but are repugnant to the spirit of our constitution. Instances indeed there may be, in which by our general practice, (and in all cases where there have been solemn decisions,) those laws have become the land marks of property; and in such cases a judge is bound by them, although he would not in the first instance have adjudged them applicable to us.
In this state, the real and personal estates descend through the same channels; in England, they divide at the death of the ancestor, and go through different channels. This forms a strong presumption against exonerating the heir or devisee of the real estate at the expense of those to whom pecuniary legacies are bequeathed, because it is a general observation, that men in making their wills are very much influenced by the laws of the country wherein they live, respecting the descent of intestate’s estates, and therefore, in the construction of wills doubtful in this point, judges ought to have those laws constantly in view.
If these conclusions and observations be just, the application of them to the ease in question is easy. The defendant is liable; he takes the land with the incumbrance. But to what extent? Not surely to the amount of the whole debt, interest and costs, recovered on the mortgage, if a total exoneration of the mortgaged land devised to him, by the personal estate, would not leave a deficiency of much more than one third of the mortgage money, to pay all the pecuniary legacies.
He is liable to make up that deficiency, with interest from the time it ought to have been paid. Would it not be absurd, as well as unjust, that he should be obliged to pay the whole mortgage, if only one penny should be wanting to pay the debts and specified-pecuniary legacies, and yet that he should not be liable to pay any part of it, in favor of the residuary legatees, had there been that penny to pay the pecuniary legacies ?
Should it be said, that in the adjudged cases on this subject, the heir or devisee has taken the land subject to the whole mortgage money, or has been entirely exonerated out of the personal estate, I repeat my observation in answer, that I find no case in the books similar to that before us. Where there are precedents, it is for the public good, that judges should adhere to them ; but where there are none, it is equally incumbent on them to deduce one from general principles, which may reach the substantial justice of every similar case.’ 3
The court then proceeded to nominate three persons to audit the accounts of the executors of Job Huston, and settle the balance due to them, (if any,) on payment of the debts and ascertain pecuniary legacies under the will.
