17 N.J. Eq. 487 | N.J. | 1864
The question is, what part of the property of the testator is to be held liable for the payment of the remaining simple contract debts, and the specialty debt referred to in the preceding state of the case.
The property undisposed of, is the interest in the Biddle farm, being a term of years intervening between the testator’s death and the twenty-fifth day of March, immediately preceding the coming of age of James Shreve, the testator’s grandson j the specific legacy to the testator’s widow, of the plate, furniture, &c., the devise to the grandsons, and the devise to the four daughters.
The term in the Riddle farnp has now expired, and. has produced, in rents, the sum of $4850, which is in the hands of the executors. The principal question discussed was as to the legal appropriation of this fund.
This term in the Biddle farm was given by the testator to his daughter-in-law. Its duration would have been four years. The farm itself was devised to her two sons, and they were directed to pay to their .mother, during her widowhood, an annuity of two hundred dollars. But both the term of years and the annuity, were made to depend on the condition that she would, within three months after the decease of the testator, execute a release of the money due on her bond. This release she refused to execute, and as the term of years therefore could not pass to her, and as it was not further disposed of by express direction in the will, its appropriation is to be settled by the coupt, in accordance with the rules of law. This will be, then, the fipst subject of inquiry.
In the debate before this court, it was urged by the counsel of the appellant^, that although the interest in the Biddle farm failed to pass to the daughter-in-law on her refusal to comply with the specified condition, yet, nevertheless, it was, in equity, to be considered as specially set aside and appropriated to the payment of the bond before mentioned. This argument was sought to be upheld on the ground that such appeared, in the will, to be the design of the testator. There
The principle of the decisions cited in support of the theory that the debt was a charge on the land, does not in my opinion apply to the case. Those decisions belong to a class of cases which establish the doctrine, that when real estate is devised on condition that the devisee shall pay a third person a certain sum, such person has the right to look
On this point of the case, therefore, I concur in the opinion of the Chancellor, that on the refusal of the daughter-in-law to receive the term on the imposed condition, it passed, by force of the residuary clause, to the testator’s four daughters. It was not denied on the argument that this would be the result, on the rejection of the theory of a special appropriation of this interest to the payment of the debt due on the bond.
This term then having lapsed into the residuum, the question arises, what is to be its ultimate disposition ? The Chancellor treated it as a devise of land to the four daughters, the residuary legatees, and holding that the general diregfion in the will to his executors to pay off and discharge all his debts, charged his whole estate with the debts, he directed this devise of the term to be placed, so far as relates to the simple Contract debts, on a level with the specific legacy to the widow and the other devisees. By the express language of the residuary clause, the residuum was to be liable only to the simple contract debts, consequently, the lapsed term was considered to be not subjected to any part of the bond debt.
I am unable to concur in this view. It rests upon the ground that the testamentary gift of the term for years is strictly a devise of land, which, upon general principles, is specific, even when given to the residuary legatee. But I am at a loss to perceive how this mere chattel real is to be considered, in its technical sense, as the subject of a devise. The point appears not to have been discussed in the court below,
If this is the correct theory, the disposition which has been made of the interest in question is clearly erroneous. As simple personalty, it cannot rank with the specific gifts to legatees and devisees. Itself a chattel, it becomes, together with the other parts of the residue of the personal estate, the primary fund lor the payment of the simple contract debts. The established rule is that the residuary legatee, as such, is never entitled to call upon either the general or special legatees or devisees for contribution in favor of creditors. As far as he is concerned it is, in the absence of all contrary indication in the will, conclusively presumed to be the intention of the testator, that he is to have the residue of the estate, if any, after debts and legacies paid. 1 Roper on Leg. 309, 357; Page v. Leapingwell, 18 Ves. 463.
This residuary fund is charged with the simple contract debts by the testator. The residue and remainder of the
My conclusion, therefore, on this point of the case is; that the term of years in the Biddle farm, being incorporated as personalty with the residue of the estate, became thereby primarily sübject to the simple contract debts, and that the moneys representing such interest, now in the hands of the executors, should be appropriated for that purpose, before contribution is exacted from the specific legacy or the devises. The surplus of the fund, as it cannot be made to assist in the payment of tile specialty debt by reason of its express exemption in the will, must pass to the residuary legatees.
The remaining question is with regard to the payment of the debt due on the bond. This has been directed to be paid out of the specific legacy to the widow and the lands devised. The Chancellor justifies this order, on the ground that the testator has charged the whole of the estate, both real and personal, with the debts. The language of the will is: “Imprimis : I authorize and direct my executors, hereinafter named, to pay off and discharge all my just debts and funeral charges, as soon as conveniently can be done after my decease:”
The cases certainly establish the doctrine that a general direction by a testator that his debts shall be paid, will effectually charge them upon the real estate. To this effect are both the ancient and modern authorities. 1 Vern. 45; S. C., 1 Eq. Cases Abridg. 197; 2 Jarman on Wills 370; 2 White & Tudor’s L. C. in Eq. 297.
But there is an exception to this rule, within which this case appears to fall; it is, that where the direction to pay debts is given to the executors, the lands will not be charged. The presumption then is, that the payment is to be made exclusively out of the funds which by law devolve to the executors in their representative capacity. In this case the direction is expressly to the executors to pay the debts, and as the exception seems to be as well established as the rule
But while I cannot concur in the principle on which the specialty debt has beeYi imposed in this case on the specific legacy and devises, I have come, on another ground, to the same result.
In the absence of any express charge by the will upon the lands devised, a specialty debt, proprio vigore, is a burden upon them to the same extent as it is upon a specific legacy. The general principle is that, on a failure of personal assets, the specific legacies and devises must abate equably in payment of creditors. This rule seems not unreasonable, and is founded in the presumed intention of the testator. As the devise and the legacy are both specific, the law deduces the lair conclusion that it was not the purpose of the testator to prefer the one to the other, and that, as they possess an equality of right, their burden should be equal. The specialty creditor can look to the land as well as the personal assets, and there seems to be no reason why, in regard to this class of debts, the one kind of property should have an immunity which the other does not possess. The leading-case on this head is that of Long v. Short, 1 P. Wms. 403. The point was also elaborately discussed, and the doctrine maintained by Vice Chancellor Bruce, in the case of Tombs v. Rock, 2 Coll. 490.
I think the decree in the Court of Chancery has properly marshaled the assets for the payment of the specialty debt.
On the other point the decree should bo reversed, and the case remitted with the requisite instructions.
The decree was reversed in part, as above, by the following vote:
For reversal — Beasley, C. J., Cornelison, Elmer, Fort, Haines, Kennedy, Ogden, Van Dyke, Vredenburgii, Wood. 10.
For affirmance — Clement.