Hogan v. . Hogan Ex'r .

Reads, J. 1. The first exception is sustained. After several specific bequests, there is the following: “ And should there be anything at my death undivided, it is my wish that it. be sold and equally divided among my four sons, after paying my funeral expenses and all just debts.” There were on hand, undivided, a consiberable amount in money and choses in action, and an inconsiderable amount of *225 personal property, and tbe question is, whether the money and choses in action pass nnder the residuary clause. It is so clear that the testator did not intend to die intestate as to anything, that we should feel but little difficulty in construing the clause, if it were not for several decisions of this Court, in cases somewhat like this, from which it is necessary to distinguish it. In Bradley v. Jones, 2 Ire. Eq. 245, the words were, “all the balance of my estate, that is not given away, to be sold, and the money arising from the sale, I give, &c.” In Alexander v. Alexander, 6 Ire. Eq. 229, the words were “ all the residue oí my property, both real and personal, to be put to sale &c., out of the proceeds of which sale, &c.” In Scales v. Scales, 6 Jon. Eq. 163, the words were, “property shall be sold, and the money arising from the sale, &c.” In all those cases it is decided, that money on hand and choses in action did not pass, the prominent reason beipg, that they are not ordinarily the subjects of sale, and in all the cases, a sale was directed, and a division of the proceeds. And there are criticisms upon the words “ estate,” “ property,” &c. The case before us is distinguished from those cited. (1.) The words here are as comprehensive as any that can-be used. “Anything” includes everything — ever j thing.. (2.) In the cases cited, the property was to be sold-, there was to be no division without a sale-, for it was the proceeds of sale, that were to be divided. In our case, a sale is not indispensable. It is to be “ sold and divided.” Observe, not sold, and the proceeds divided, but “ sold and divided ” That is to say, it is to be divided, and in so far as a sale is necessary to a division, it is to be sold. If there be part money, part choses in action, and part property, the division, the main object, may be best effected by holding the money, collecting the debts, and selling the property, and then, when the whole is got together, dividing. Why might not this have been done in the cases cited? Because only the proceeds of' the sale were to be divided. In this case, stress may also be laid upon the fact, that the division is directed to be made after his funeral *226 expenses, and just debts are paid, showing that it was the intention of. the testator, that all that remained of his estate, was to 1 divided under the residuary clause. The second exception is overruled. The legacy of $1,000 1 rtha Kirkland “ to pay her debts, and for her support as she ^_eds it,” was not adeemed in testator’s life time, and has not been paid to her since his death. It was no part of the business of the executor to hunt up her debts and pay them off for her. It was his duty to pay it over to her, to be used at her discretion. It is alleged in the answer, that there are charges in the way of a book account against her by the testator, to the amount of $298, and the executor claims to retain that amount. He would have the right to retain any ascertained debt against her, due the testator, but there was replication to the answer, and there was no evidence to support it. There is an affidavit of the executor that he offered vouchers before the commissioner, of his having paid the legacy to Martha Kirkland, in accordance with the will, and that the commissioner refused to allow them. We suppose he means that he offered vouchers of his having paid off debts for her, as set forth in his answer, and we have said that that cannot avail him. If he has paid the legacy to her, he will be entitled to have the payment allowed when an execution shall be moved for. The reportawill be reformed to correspond with this opinion, and, if the parties desire it, it will be referred to the clerk for that purpose. Per Curiah. Decree accordingly.