Bourne v. Hall

Dubeee, J. This bill is brought by the administrator and some of the next of kin of the late William Coggeshall, to subject the farm of the defendant to the payment of certain sums of money for the past maintenance of said William, the same being claimed to be a charge on said farm under the will of the late George Coggeshall, who was the father of said William. The clauses of the will upon which the claim rests, are substantially as follows: — “I give my wife, Lucy Coggeshall, the use and improvement of my homestead farm during the term of her natural life, and all my household furniture, farming utensils of every kind, all my live stock, such as cattle, sheep, &c., and one hundred dollars in cash to be at her own disposal. I also give to my said wife fifty dollars and six cords of wood yearly and every year, during her life, to be paid her as hereinafter ordered, and I hereby order and my will is that my said wife shall, during the term of .her natural life, support and maintain my son William in a decent and comfortable manner,-with sufficient food and raiment, or so long as my said son shall be divested of his mental abilities; the above bequests to be in lieu of dower in my estate. “ I give and devise to my son, George Coggeshall, Jr., his heirs and assigns forever, after the demise of his mother, my home *148 stead farm, always making said farm liable to support and maintain my son William during the time he shall remain divested of his mental abilities, ordering my said son George, after the demise of his mother, to provide for him comfortable food and raiment. I also give my son George one hundred dollars.” George Coggeshall, the testator, died in 1812, and his will was duly admitted to probate. William Coggeshall was, at the time of his father’s death, non compos mentis, and so continued until his own death, which occurred on the 29th of September, 1863; and from 1830, he was for a greater part of the time under guardianship. The testator’s widow, Lucy Coggeshall, died March 14, 1841, and the testator’s son George died June 12, 1816. The bill charges that the trusts and orders of said will have not been carried out, and that said William has had no support and maintenance from said farm since April, 1826 ; that said farm is now owned in fee and is occupied by the defendant; and the bill prays that an account may be taken of the amount proper to be allowed from said farm for the support and maintenance of said William from April, 1826, till his decease, and that the defendant may come to a fair and just account in the premises. The will, in addition to the clauses in favor of said William above recited, also provides that if the said William should at any time be restored to his mental understanding, he should then have an equal third part of the testator’s real estate, which was divided by the will between the testator’s two sons, Thomas and George; and this provision is cited in the bill as showing an intention on the part of the testator to give each of his three sons a third part of the real estate or its equivalent, and to subject the farm devised to said George always to the support and maintenance of said William. We think it evident from the bill, answer, and exhibits, that for many years previous to his death the said William did not receive any support from the farm aforesaid, or from its devisees ; and that during that time his own property was used, to some extent at least, to provide “the comfortable food and raiment,” which by said will the said devisees were directed to provide for him. The question is therefore raised whether in the case, as it is now framed, the defendant’s farm can be charged to *149 make up, either wholly or in part, for the neglects of ¿he said devisees. We will first consider whether there was any charge created for the support of the non compos during the life of Lucy Coggeshall, which can now be enforced. No such charge was expressly created by the first of the two clauses of the will above recited. By that clause the testator gives to his wife Lucy the use of his homestead farm for life, with other property, and an annuity of fifty dollars and six cords of wood, and orders that his wife shall, during her life, support his son William, or so long as he is non compos. The devisee is personally charged in respect of the estate, and if the farm is charged, it is charged by implication, and therefore only to the extent of the estate devised. The' estate devised was a life estate ; and clearly a charge upon a life estate, the same being retained as such, could not be enforced after the estate determined by the death of the life tenant. In the case at bar the life estate became merged in the fee by the union of the two estates in the defendant’s grantor prior to the decease of the life tenant. The effect of this upon the charge, if any there was upon the life estate, has not been discussed. The plaintiffs have not, however, contended that it would have an effect to enlarge their remedy so that they can resort to the farm after her decease, upon any claim which would not have entitled them to resort to the farm in case she had retained her life estate until her decease, and we are not prepared to hold, in the absence of authority, that any such enlargement of the remedy would result from the merger of the life estate in the fee. The plaintiffs claim, not by virtue of any charge to be inferred from the language of the first clause, but by virtue of the charge expressly created by the second clause. In the second clause the testator gives his son George, after the demise of his mother, his homestead farm, “ always making said farm liable to support and maintain his son William,” &c., and ordering said George, after the demise of his mother, to support William. The plaintiffs urge particularly, in support of their construction, the use of the word “ always.” We are, however, to ascertain the intention of the testator not from a single word or phrase, but from the will as a whole. Looking at the will thus, we find that he first gives' the farm to his wife for life, with certain other property, orders *150 her to ‘support the non compos during her life, obviously believing that she will be able to do so with the property given. He has thus provided for William daring the life of his wife. Then, after certain other devises and bequests, he gives his homestead farm to his son George, after the demise of Ms mother, “ always making said farm liable,” &e., and ordering said George, after the demise of his mother, to support William. There is a devise to one son and a provision for the support of the other, the devise in the one case and the provision in the other being designed to become operative after the death of the mother. Can we say, in view of this fact and of the manner in which the second clause stands related to the first, that the testator meant more, by the use of the word “always,” than always to subject the farm as then given to the support of William, — that is to say, always after George comes into possession thereof and becomes personally chargeable ? If we say the farm is to be liable during the life of the mother and for her defaults, we expose the estate, given to the son, to the risk of being diminished, if not used up, to satisfy a claim accumulated by her defaults. Under such a construction the son, by no fault of his own, might lose, either wholly or in part, the benefit of the devise to him. If we put ourselves in the place of the testator, it is easy to conceive that when he gave the farm to George after the demise of his mother, always making it liable for the support of William, he meant always from the time the devise was to take effect; and we deem this the more reasonable construction in view of the other parts of the will. We therefore decide that there was no charge on the farm for the support of William during the life of LucyCoggeshall, which can be 'now enforced under this will. The defendant objects that the bill is defective for want of necessary parties, to wit, the legal representatives of Lucy and George Coggeshall. If our view just stated be correct, the objection can only apply in the case of George, and we are therefore to inquire whether his representative is a necessary party. The defendant contends that the said George is made personally and primarily liable for the support of William, and that therefore the farm cannot be resorted to until the remedy against his legal representative has been exhausted. The case of Dodge v. Manning, 1 Comst. 298, cited by the defendant, is a precedent in *151 point, unless the case at bar can be distinguished from it. In that case the testator gave to his granddaughter a legacy of two hundred and fifty dollars to be paid out of his estate by his grandson, to whom, after certain devises and bequests, he gave the residue of his real and personal estate. The defendants became purchasers under a mortgage made by the grandson of a portion of the real estate devised to him, and the bill was brought to, obtain payment of the legacy and interest out of the land so purchased. The court held that the devisee, by accepting the devise, became personally liable for the payment of the legacy, and that the remedy should be first exhausted against him and the real and personal estate of the testator in his hands, before the defendants should be charged in respect to the real estate purchased by them. But the court adds: “ If they had purchased expressly subject to the payment of the legacy, that of itself might have made the estate in their hands directly and primarily chargeable.” It will be observed that here the charge rested upon both real and personal estate, and that the defendants had purchased only a portion of the real estate, and furthermore, the devisee was still living, and for anything that appears, in solvent circumstances. In the case at bar the facts are different. The defendant has purchased the entire estate charged by the will. The devisee is dead, having died nearly twenty-five years before the time when, if he had lived, he could have been called upon for the support of William. In what way can his administrator be charged on such a liability ? ' The defendant does not inform us. But further, the title of the defendant to the fee of the farm, as appears by his answer, is derived, not from George Coggeshall, but from his administrator, by a conveyance made in about 1819 or 1820. The administrator could sell only by leave of the court of probate to pay the debts of the intestate, and only to the extent of the intestate’s estate. We feel constrained, especially in view of the fact that the liability was one which could not then have been discharged, to hold that the person so purchasing the entire property charged must be deemed to have purchased subject to the charge, and that consequently he has no equity which entitles him to require that the remedy shall first be exhausted against the legal representative of George Coggeshall, even if the legal representative of George can be sued upon the *152 liability. We think therefore that the plaintiffs are entitled to prosecute the bill without making the legal representative of George Coggeshall a party defendant, the relief sought being simply an enforcement of the charge upon the farm, and nothing being demanded of him. Kerr et al. v. Watts, 6 Wheat. 550. Another claim or suggestion in defence is that the devisees had the right to sell the farm, and that the purchaser was not bound to look to the application of the purchase money. But as we have seen, the sale of the fee of the farm was not made by the devisee but by his administrator, and under such circumstances that the purchaser must be presumed to have purchased it subject t$ the charge. Such being the case, the suggestion is without force. And see Clapp v. Clapp & others, 6 R. I. 129; Pickering v. Pickering, 15 N. H. 281; Felch v. Taylor, 13 Pick. 133; Swasey v. Little, 7 Pick. 296; Harris v. Ross, 4 Jones Eq. 413. The defendant pleads or sets up in his answer the statute of limitations and the statute of possessions, he having been in possession of said farm, claiming it as his own, for more than twenty years. We deem it a sufficient reply to these pleas that the said William was non compos mentis, and, as such, was, by express exception, not within the operation of either of said statutes. The fact that he had guardians who might have sued for him does not in our opinion qualify the privilege which is conferred upon him by the exceptions in those statutes, there being no words in either statute which import that the privilege is to be subject to any such qualification. The defendant further contends that the provision of the will for the support of William was personal to himself and expired with him. We quite agree with the defendant that no one but William can claim to be supported under the will; but it appears that, by reason of the default of those chargeable with his support, his estate has been lessened, and the question is whether, to the extent to which it has been lessened, it ought not to be indemnified. The defendant says not. He says that after the death of the testator property came to the non compos by inheritance, and that it is not to be supposed that it was the intention of the testator that he should continue to have his support from Lucy and George Coggeshall after he had come into possession of property *153 of his own. Doubtless the guardian of William, after he had become possessed of property of his own, would be justified in affording him a better support than before, and for the additional expense of such better support would be entitled to look only to the property of his ward; but we can discover no indications in the will that the testator did not intend his son should continue to participate in his bounty as he had previously been entitled to do in the event of his inheriting property from another source. On the contrary, the fact that the will provides that, if he should become of sound mind, he should have a third of the real estate devised to the other two sons, shows that he was an object of special testamentary care and regard. The defendant refers to the cases of Rawlins v. Goldfrap, 5 Ves. Jr. 440, 444, and Ellerbe v. Ellerbe, 1 Speer’s Eq. 328, in which provisions for support received the construction for which he contends. But the language used by the testator in those cases, and the circumstances in view of which it was to be construed, so clearly distinguish those cases from this, that we do not think they ought to be allowed to control what we regard as the fair construction of the will before us. The defendant urges that if the non compos continued entitled to support under the will, notwithstanding his own property subsequently inherited, and did not have such support, the fault was that of his guardians, who did not enforce it, and the plaintiffs can look only to them for indemnity. We do. not take this view. It may have been the duty of the guardians to enforce the right of their ward under the will, as it would have been their duty to enforce the payment of a debt due. to him, if any such there were ; but, in our opinion, their neglect did not operate as a release of the duty of support in the one case, any more than it would as a release of the debt in the other. The duty imposed by the will was an active duty to care for a person incapable of caring for himself, and should have been voluntarily performed, without -waiting for any request; and if, by reason of any neglect to perform it by those charged with the duty, the estate of the non compos has been reduced, we think his administrator is entitled to resort to the farm, upon which his support was charged, to have the estate, to the extent to which it was so reduced, made whole again. Beyond this, however, we do not think any claim *154 of the plaintiffs can be allowed. If at any time the non compos has been gratuitously supported, his estate during that time having sustained no loss, can be entitled to no indemnity. We also think there is no reason to suppose that the testator intended to have the non compos supported in idleness, inasmuch as it appears that he was accustomed to work during the lifetime of the testator, and therefore we do not think his estate is to be benefited by any reduction in the cost of his support by reason of his services to the persons furnishing it. Sheldon v. Purple, 15 Pick. 528; Conkey v. Everett, 11 Gray, 95. On the contrary, if at any time the guardians relieved the non compos from the necessity of rendering such services as he was accustomed to render, when he might with propriety have rendered them, and thereby increased the expense of his maintenance, that is a matter to be considered in the account against the defendant. The defendant also claims the benefit of certain alleged estoppels which he contends ought to bar the recovery, either wholly or in part, of the plaintiffs suing as next of kin of the non com pos, and of the administrator suing in their behalf. The facts upon which the estoppels are claimed do not appear, or appear only in part, in the pleadings, and the defendant did not in his answer claim, the benefit of any estoppel, the claim being first made at the hearing. It may be questioned if, in such a state of the pleadings, the defendant is entitled to insist upon the alleged estoppels. -But if he can, it is not pretended that as to George Coggeshall, one of the plaintiffs and next of kin, there is any estoppel, except in so far as the bill seeks indemnity to the estate of the own coonpos for the default of Lucy Coggeshall, and to that extent we have already held that the bill cannot be maintained. It is not even claimed that as to George Coggeshall there is any further estoppel, and therefore, in any event, the administrator is entitled to prosecute in his behalf, and so is entitled to an account to ascertain the amount due the estate for failure to support the non coonpos after the death of Lucy Coggeshall. The defendant also urges, as a ground of defence, the staleness of the claim. But this objection applies to only a part of the claim, and will be entitled to due consideration by the master in taking the account. *155 We think a decree should be entered sending the case to a master to take an account, not extending back, however, to any time anterior to the decease of Lucy Coggeshall. Decree accordingly.