Pond v. Allen

Dureee, C. J. The decision of the court on the questions submitted is as follows, to wit: — First. The devise of the Blackstone estate to Francis Met-calf is an out-and-out devise to him of the fee in remainder, and entitled him to the rents thereof immediately after the death of James Helme, the life tenant. The direction in Item 18 is in our opinion a direction to the administrator to be appointed “ to make a final settlement of the estate,” and as such relates only to the pecuniary bequests and bequests of personalty. >Second. It is competent for a court of chancery to sequester the rents of real estate which is charged by will with the payment of debts or legacies, if there will be a deficiency without them. The cases of Draper v. Barnes, 12 R. I. 156, and Allen v. Allen, 12 R. I. 301, are cases relating to the statutory charge for the payment of debts, and not, as here, to a testamentary charge for the payment of legacies or debts and legacies. The statute provides in effect that the_statutory charge shall not extend to rents accruing before sale. Pub. Stat. R. I. cap. 185, § 5, cap. 187, § 10. 1 Under the will here the residuary devisees are entitled to *178 nothing except what is left after the specific legacies are paid, and therefore the specific legatees are as much entitled to the rents or income of the residuary real estate as to the real estate itself, if the rents are needed for the payment of the legacies and the legatees duly assert their title to them. Grantham v. Lucas, 15 W. Va. 425; Schomberg v. Humfrey, 1 Dr. & War. 411; Chalk v. Raine, 13 Jur. 981; Bloodgood v. Clark, 4 Paige, 594; Bank of Ogdensburg v. Arnold, 5 Paige, 38; 2 Story Eq. Juris. §§ 1244, 1246. Third. The several pecuniary legacies are present gifts to the legatees named, though they are not to be paid until one year after the death of James Helme, who is to have the income of the estate during his life. The payment of the legacies is postponed during the life of James Helme for his benefit, in order that he may have the income, and for one year longer for the settlement of the estate. Such a postponement does not prevent the vesting of the legacies. It follows that the personal representatives of the legatees who died after the testatrix are entitled in their places. Rogers v. Rogers, 11 R. I. 38, 73-76; Packham v. Gregory,4 Hare, 396; Doe, Lessee of Poor, v. Considine, 6 Wall. 458; Herbert’s Executors v. Post, 26 N. J. Eq. 278; Post v. Herbert’s Executors, 27 N. J. Eq. 540; Loder v. Hatfield, 71 N. Y. 92. Eldridge, Adm’r, v. Eldridge, Ex’r, 9 Cush. 519. Nor is the real estate exonerated. The doctrine of the English cases cited, 1 that, where a legacy payable in futuro is charged upon real estate, the real estate is relieved *179 if the legatee dies before the time of payment arrives, even tbougb the legacy may be vested and hold as against the personal assets, is not a very satisfactory doctrine. It rests rather upon the English prejudice in favor of the heir or of the devisee, who is, it is said, factus hceres, than upon any sound principle, and we are not aware that it has the approval of any American decision. But, however that may be, the doctrine, according to the modern statement of it, applies only where the payment is postponed for reasons personal to the legatee, as, for instance, where the legacy is to a minor to be paid when be reaches his majority, and does not apply where, as in the case at bar, the postponement is for the benefit of some person other than the legatee, who is meanwhile entitled to the use or income of the estate which is charged, or where it is merely for the convenience of the estate in settlement. 2 Jarman on Wills, 5th Am. ed. by Rand & Talcott, 450 and note; Evans v. Scott, 1 H. L. 48, 57; Birdsall, Adm'x, v. Hewlett, 1 Paige, 32; Harris v. Fly, 7 Paige, 421. Fourth. The children of the legatee who died before the testatrix are entitled to take in her place under the statute. Pub. Stat. R. I. cap. 182, § 14; 1 Moore v. Dimond, 5 R. I. 121. Fifth. The bequest by codicil of $4,000 to Leonard Hazelton, instead of the $2,000 bequeathed by will, takes the place of the latter bequest in the will, and should abate and be paid on the same footing with the other legacies. Roper on Legacies, 873. Sixth. The bequest by codicil of $3,000 to Sarah H. Rickard, wife of George Rickard, is to be treated as if it were originally in the will. The bequest is contained in a clause which alters the will, in respect of bequests of $2,000 each to James H. Rickard and George S. Rickard, by substituting bequests of $7,000 to each of them, and which confirms the will in respect of bequests of $2,000 each to Sarah Rickard and Lizzie Rickard. The bequest to Sarah H. Rickard, wife of George, immediately follows the confirmation *180 in the words, “ and I also give and bequeath to Sarah H. Rickard, wife of the said George Rickard, the sum of $3,000 to her, her heirs and assigns, forever.” Of course the bequest, being a part of the clause, must be interpreted as such, and, so interpreted, it seems to us that.the intention was to put Sarah H. Rickard, wife of George, together with the other legatees there named, and to make her, together with them, in legal effect, a legatee under the will. This construction, though-not free from doubt, is the construction which best accords with the general design of the will to keep the property intact for the use of James Helme, the husband of the. testatrix, during his life. Moreover, considering how careful the testatrix was to fix the time for the payment of the legacies given by the will, it is reasonable to suppose that she would have named a time for the payment of this bequest, if she had not intended it to be paid as if a bequest under the will. The legacy to Lucinda Hazelton is of the same character, and must be construed in the same way. James Tillinghast, for complainants and some of the respondents. Thomas Q. Grreene, for the administrator with will annexed. Colwell $ Barney, for other respondents. Footnotes [1] As follows : — Cap. 185: “ Sect. 5. If any testator or intestate shall die after the first day of March, all the emblements of his lands that shall be severed before the thirty-first day of December next following, shall be included in the inventory and be assets in the hands of his executor or administrator; but all such emblements growing on the lands on the day last mentioned, or at the time of the death of the testator or intestate, if that event happen after the thirty-first day of December and before the first day of March, shall not be so included, but shall pass with the land to the heir, devisee, or tenant in reversion or remainder.” *178 Cap. 187: “ Sect. 3 O. No person entitled to a share in the estate of any deceased person shall have a right to demand the same within three years after administration or letters testamentary granted on such estate, unless he shall give bond to the administrator or executor, with sufficient surety, to be approved by the Court of Probate, to refund the proportionate share of the estate, in case any debt or debts should afterwards appear against the same, and the executor or administrator should not have a sufficiency of the estate in his hands, undivided, for the payment thereof : provided, that the heirs at law or devisees may, during said term, take the rents and profits of the real estate as heretofore.” [1] Poulet v. Poulet, 1 Vern. 204, also 2 Ventr. 366; Gawler v. Standerwick, 2 Cox, 15; Smith v. Smith, 2 Vern. 92; Jennings v. Looks, 2 P. Wms. 276; Duke of Chandos v. Talbot, 2 P. Wms. 601, 610; Prowse v. Abington, 1 Atk. 482, 485; Parker v. Hodgson, 1 Drew. & Sm. 568. [1] As follows : — “ Sect. 14. Whenever any child, grandchild, or other person having a devise or bequest of real or personal estate shall die before the testator, leaving a lineal descendant, such descendant shall take the estate, real or personal, as devisee or legatee, in the same way and manner as such devisee or legatee would have done in case he had survived the testator.”