4 Del. Ch. 289 | New York Court of Chancery | 1871
This is a bill for instructions touching the disposal, by the Executor of Elijah Morris deceased, of the unappropriated balance of the decedent’s personal estate. The rights of the parties claiming an interest in the fund depend upon several questions, which have been argued at the bar.
First, is the question whether the testator’s widow, Ann E. Morris, is entitled to claim both the legacy given to her by the will and her dower, in the testator’s lands— taking with respect to the dower, an equivalent interest in the proceeds of sale—the lands having been converted into money under the direction of the will and discharged of dower by reason of her joining in a deed to the purchaser. This not being a case under our statute, touching the election by the widow between dower and a devise of real estate, it is governed by the general doctrine of election as administered in courts of equity. This doctrine precludes a party taking a benefit by deed or will from asserting any title or claim clearly inconsistent with the provisions of the instrument under which he takes—putting him to his election between the two. In its application to the case of dower it is nowhere better stated than by our Court of Appeals in Kinsey vs. Woodward, 3 Harring. 474. “In regard to dower,” says the Court, “it “ seems from all the cases to be an established rule that “ a court of equity will not compel the widow to make
Applying this rule to the present case I am of opinion that there is sufficient in this will to put the widow to her election. This conclusion is not drawn from the fact that the testator has directed his real estate to be sold and has given to his widow a share of the proceeds. These circumstances it is fully settled do not per se sufficiently demonstrate an intention to bar dower. French vs. Davis, 2 Ves. Jr. 572. Ellis vs. Lewes, 3 Hare 310, (25 Eng. Ch. R); Gibson vs. Gibson, 1 Drewry 42, (17 Eng. Law & Eq.) Wood vs. Wood, 5 Paige 596. But the very terms of the bequests made to the widow do, upon a fair and reasonable construction, import that this was to be the whole provision taken by her out of the testator’s estate. The bequest runs thus : “ I give and bequeath unto my beloved wife “one third part of my whole estate according to law, with “ the exception of her interest in two indentured servants “ and one bay mare hereinafter mentioned.” Now the obvious and common sense meaning of this clause is that the widow shall take of the whole estate, consisting of the proceeds of both real and personal estate converted
This phrase “ according to law,” although an inapt expression is not on that account to be rejected. In the interpretation of wills all expressions however inartificial, are to be construed as helps toward ascertaining the testamentary intent. Such effect has been given to kindred expressions by our own courts as in Burton vs. Burton et al., 4 Harring. 38, and Horsey vs. Horsey’s Exrs. 1 Houston 438. My conclusion is that the widow was at the testator’s death put to an election between dower and the
This brings us to the second question, viz : whether her share of the estate is subject to abatement with the other legacies for the payment of the debts, or is liable only for such deficiency as may remain after the other assets shall have been exhausted. ' Or to put the question in the form presented by this case—the debts having already been paid out of the general estate, is the widow entitled to the full satisfaction of her legacy out of the remaining assets before any part shall be applied to the other legacies ? I am clearly of that opinion. In the first place, a widow is deemed a purchaser of a devise or bequest made to her in lieu of dower. The transaction has all the force of a contract between her and her husband. Consequently upon a deficiency of assets to pay both debts and legacies, a legacy to her in lieu of dower does not abate with. the other legacies, but is liable only for such deficiency as may remain after the other assets shall have been exhausted. Nor does it matter that the benefit given to her may exceed the value of the dower, for the testator is the judge for what price he will purchase the renunciation of her dower, and no legal injury can result to other devisees or legatees, they being mere volunteers from whom the testator might if he saw fit, devise away his whole estate. The authorities on this point are numerous and uniform. Burridge vs. Bradey, 1 P Wms. 127; Blower vs. Merret, 2 Ves. Jr. 420; Davenhill vs. Fletcher, Amb. 244; Heath vs. Dendy, 1 Russ. 543; Norcott vs. Gordon, 14 Simons 258 (37 Eng. Ch. R.); Loocock vs. Clarkson, 1 Desauss 471; Stuart vs. Carson, 1 lb. 500; Isenhart vs. Brown, 1 Edw. 411; Williamson vs. Williamson, 6 Paige 298; Hubbard vs. Hubbard, 6 Met. 50; Pollard vs. Pollard, 1 Allen 499; Reed vs. Reed, 9 Watts, 263;
But I now proceed to another distinct ground for exempting the widow’s legacy from debts as between her and the residuary legatees. A residuary legatee has no right to call upon the particular legatees to abate. The whole personal estate not specifically bequeathed must be exhausted before these legatees can be obliged to contribute anything out of their bequests. 1 Roper on Legacies 411; 2 Redfield on Wills, 549.
The rule proceeds upon the clear principle that until both the debts and the legacies are paid there is no residue. The principle applies although the residuary clause makes no reference to the legacies; a fortiori, where, as in this case, the residue is expressly given “ after deducting the “ aforesaid legacies, ” which are the bequest to the widow of one-third of the whole estate, the legacy of $200 to Mrs. Clymer and the specific bequests of the indentured servants and bay mare. An argument against the exemption of the widow from abatement with the residuary legatees was drawn from the use, both in the bequest to her and in the residuary bequest, of the same phrase “ my whole “ estate, ” the bequest to the widowbeing of “ one-third part “ of my whole estate ” &c., and the residuary bequest being of “ the balance of my whole estate. ” Showing, as was argued, that, in the contemplation of the testator these bequests were to attach to different parts of the same subject-matter ; that out of whatever funds the widow might take, the residuary legatees should also take, she taking one-third and they two-thirds. The effect of such a construction would be to divide between the widow and the residuary legatees the surplus after first paying the debts out of the whole, since otherwise as the estate has turned out, the widow will take all and the residuary legatees nothing. The whole
I proceed now to apply the rule exempting the widow’s share from abatement for debts. The effect is to give her the whole fund now before the Court, subject to the right of'the post-testamentary children which will be presently considered. The whole estate amounted say to $7722.33. One-third part of this sum, say $2574.11 was the widow’s share in lieu of dower.
Of course the whole estate is subject first to debts and expenses of administration, as well against the widow as against the other legatees ; but these being paid she is entitled next in priority to have the surplus applied toward satisfying her legacy. That will wholly absorb the unappropriated balance of $1829.02, leaving no assets for the other legacies, except the servants and bay mare which were expressly reserved for the specific legatees. Mrs. Clymer takes nothing, because she is a volunteer claiming against a purchaser; and the four sons named in the residuary clause take nothing, both because they are volunteers and, additionally, because they are residuary legatees. There remains the third and last question, viz; what are the rights of the post-testamentary children, Mary Laura and Ann Eliza, what shares of the estate do they take, and how are their shares to be made up ?
The questions are answered by our statute for the benefit of children born after a will is made. Rev. Code,274,sec. 12 &c. Under this statute such a child takes the'same portion of its parent’s estate both real and personal that he would have been entitled to, if such parent had died intestate. Elijah Morris left to survive him the widow and six chil
We are now enabled to ascertain exactly the shares of the post-testamentary children and to decree how the shares shall be satisfied. The testator has left, after the payment of his debts and expenses of administration, a clear estate of $1849.02 which balance though resulting from a conversion of the real estate is to be treated as personal estate. The children take out of this balance such part as the statute of distributions would have given them under an intestacy, i. e. each, one-sixth of the surplus after deducting the one-third given by that statute to the widow, which is one-ninth part of the whole, making for each of the children $205.44. No occasion for abatement, or for contribution between different legatees, arises in thise cas, as ordinarily is necessary where several legatées take an actual, benefit under the will ; because here the widow is the only legatee who takes any thing,
The result of the whole investigation is that the post-
Note. An appeal was taken in this case, and it was heard at the June Term, 1872, of the Court of Errors and Appeals. That Court held the legacy to the widow to be one-third of the estate after the payment of debts and funeral expenses, subject to abatement in favor of the post-testamentary children, instead of one«third of the original estate as held by the Chancello^ This was the result of a different construction given to the words u according <( to law,” and the decree was altered in accordance with that view. See 4 Houston's Del. Rep. 414.