Smith v. Coup

The Surrogate. Of course, if the debts be a charge upon the real estate of the testator, this court has no jurisdiction to order a sale for their payment. That duty will devolve upon another court. The general rule is, that a deceased person’s estate is to be applied to the payment of his debts, in the following order: 1st. The general personal estate; 2d. Estates specifically devised for the payment of debts; 3d. Estates descended ; 4th. Estates specifically devised, though charged generally with the payment of debts. And it requires express words, or the clear intent of the testator, to disturb this order (Livingston v. Newkirk, 3 Johns. Ch., 312; Livingston v. Livingston, id., 148). But the personal estate must be first resorted to, even where the real estate is so charged; and even where the testator gives his personal estate, he is supposed to give it subject to the payment of his debts, that being the first fund available for the purpose; and when he charges his real estate with the payment of his debts, he is supposed so to charge it with the payment of such debts as may remain after his personal estate is exhausted. There is, however, nothing in the will, in this case, to show that the testator intended to exonerate the personal estate from such payment. [48] It is immaterial to inquire here, whether the charge of the debts upon the realty, if there be such charge, is upon specific portions, or upon the whole, as the fact that they are charged upon any portion of it, will deprive this court of jurisdiction to entertain the application. There can be no doubt that the testator did charge his debts upon real estate. It has been frequently and uniformly held that the devises, following the words: “ After all my debts are paid,” clearly indicate an intention to make the lands devised subject to the debts. It is sufficient to cite 2 Jarm. on Wills (5th Am. ed.), 535, 536 ; Matter of will of Fox (52 N. Y., 530); Matter of Rosenfield (5 Dem., 251). Petition dismissed.