| Mass. | Nov 27, 1907
The petitioners are executors of a will which contains a legacy of $3,000 to one Palmer Tilton, a nephew of the testator. This nephew died before the death of the testator, leaving as his only child the respondent, Palmer Tilton. Were it not for the provision contained in the R. L. c. 135, § 21, this legacy would have lapsed. Under that provi
It is provided by the R. L. c. 141, § 28, that “ a debt due to the estate of a deceased person from a legatee or distributee of such estate shall be set off against and deducted from the legacy to such legatee or from the distributive share of such distributee ; and the Probate Court shall hear and determine the validity and amount of any such debt, and may make all necessary or proper decrees and orders to effect such set-off or deduction,” etc. Except for this new mode of collection of a debt, thus secured to the executors by proceedings in the Probate Court, this enactment is in accordance with the previous practice and the law in Massachusetts. Allen v. Edwards, 136 Mass. 138" court="Mass." date_filed="1883-11-30" href="https://app.midpage.ai/document/allen-v-edwards-6421123?utm_source=webapp" opinion_id="6421123">136 Mass. 138. Jones v. Treadwell, 169 Mass. 430" court="Mass." date_filed="1897-11-22" href="https://app.midpage.ai/document/jones-v-treadwell-6426134?utm_source=webapp" opinion_id="6426134">169 Mass. 430. Under this statute a pecuniary legacy to a debtor of the testator is, in legal effect, a gift of the sum stated, less the amount of the indebtedness due from the legatee.
The precise question is whether the statute which saves a legacy from lapsing puts the'estate of the testator in any worse position than it would have been in if the original legatee had survived, or puts the substituted legatee in any better position, in reference to the legacy, than his ancestor would have been in if he had not died.
If we seek to discover the purpose of the Legislature, it pretty plainly appears to be to put the estate and the substituted legatee in the same relations to each other, in reference to the legacy, that the estate and the original legatee would have been in if the latter had survived. The language of the original act, retained without material change in subsequent legislation until the enactment of the Pub. Sts. c. 127, § 23, gave the issue a right to take the estate “in the same way and manner such devisee would have done ini case he had survived the testator,” etc. St. 1783, c. 24, § 8. Rev. Sts. c. 62, § 24. Gen. Sts. c. 92, § 28. The substitution of the words, “take the same estate that the person whose issue they are would have taken, had he survived,” etc., does not affect the meaning of the statute, as it is a mere re-enactment. Drew v. Streeter, 137 Mass. 460" court="Mass." date_filed="1884-09-22" href="https://app.midpage.ai/document/drew-v-streeter-6421383?utm_source=webapp" opinion_id="6421383">137 Mass. 460, 462.
The fact that his remedies for the collection of the debt are preserved to the executor against the estate of the original legatee does not affect his right to a set-off in the payment of the legacy, nor enlarge the rights of the substituted legatee. R. L. c. 141, § 23.
Decree of Prohate Court affirmed.