66 Md. 89 | Md. | 1886
delivered the opinion of the Court.
The question in this case is whether certain legacies in the will of Elizabeth Kauffman, deceased, are charged upon her real estate. The clauses in the will, which it is important to notice are as follows: “I will and direct my executor hereinafter named to satisfy and pay all my just debts and funeral expenses out of my estate. * * * I give and bequeath unto my nephew, John C. Kauffman, the sum of two hundred dollars, and'I direct my executor hereinafter named to pay the same to him as soon as convenient after my decease, out of my estate * * * I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal, and mixed whatsoever and wheresoever at the time of my decease, unto my niece, Margaret Jane White, to her- own sole and
It will be observed that in directing the payment of her debts, the testatrix uses the same language as that which is applied to the payment of the legacies. She directs her executor to pay both debts and legacies out of her estate. . This Court has given its approval to the authorities which hold that words which charge debts upon the realty, will have the same effect when applied to legacies. Ogle vs. Taylor, 49 Md., 175. In considering the cases, which have been decided in England and in the States of this country which have followed the English authorities, we must bear in mind an important difference between the law of this State and the common law on the subject of the payment of debts due by decedents. By the common law, the real estate of a deceased person was not liable for his simple contract debts; nor even for his specialty obligations, except where the heir was expressly bound. Hence, there was a natural and laudable desire on the part of the Judges to construe wills so as to bind the lands of the testator for the payment of his debts, wherever such coustructiou could possibly be made. They were astute in giving a meaning to general and ambiguous expressions, in order to carry into effect the just and rational purpose of paying the debts of a decedent out of his property. But in Maryland such construction would
The personal estate is the natural and primary fund for the payment of debts and legacies; and even when the real estate is expressly charged, no resort can be made to it, until the personalty is exhausted, unless it has been enonerated by the terms of the will. If the testator gives a legacy, the law conclusively presumes that it is to be paid only out of the personalty, and if that is insufficient the legacy is lost; unless a contrary intention is
The Court below passed a decree that the real estate should be sold for the payment of the legacies. It will be seen that we take a different view of the case.
Decree reversed, and hill dismissed with costs in hoth Courts.