Bell's Executors v. Bell

The opinion of the court was delivered by Lowrie, C. J. — We have a writ of error by each party in the same case. It is one of the general class of cases that fall under the doctrine of marshalling assets of a decedent; and we are to look for the intention of the testator as our guide in deciding it. And we must be cautious in the application of English authorities in seeking the intention ; for their law of descents and of the liability of estates for debts is radically different from ours : 23 State R. 227. Naturally, we expect all debts, not specifically provided for in a will, to fall upon the residuary estate: 24 Id. 22. But this expectation is not so strong as to justify a conclusive presumption ; for it might interfere with the manifest intention concerning the residuary estate, and the debt may be secured in some other form independent of the will. The debt sought to be charged on the residuary fund, in this instance, is a statutory dower in favour of a widow of a former ownér. It existed as a charge on the land, when John Bell bought it from Cowell in 1830, and when he made his will in 1845, and when he died in 1853, and it continues to exist; and he regularly paid it to the widow. In the devise of the land to his son, nothing is said about this charge; are they entitled to have it paid out of the residuary estate ? If it were a mortgage owed by him and actually due, we would say, yes: 24 State R. 200. But it is a permanent charge during the life of another. It would not be discharged by a judicial sale : 20 Id. 236. We know not how long it may remain, but if John Bell had died a quarter of a century ago, his residuary estate would still have been unsettled, if it is the primary fund to pay the dower. And yet the law contemplates the settlement of estates in one year; and testators always contemplate a speedy settlement, except when they make special provision to the contrary. We cannot think that this testator intended that the final settlement of his estate should be delayed during the life of any one, or that he intended to exonerate the land from the charge which stands in its title, and impose it upon the residuary fund. Even the residuary clause favours this view, for it says, “ after all my just debts are paid, then the balance to be equally divided.” On the contrary hypothesis this cannot be literally carried out during [312] the life of the widow. If he had intended any such delay in settling his estate, he would have said so. It was quite natural for him to think that the devisees of the land would have to pay the dower upon it; and thus thinking he might omit to say anything about it. If he had intended that the residuary estate should pay it, he would have made a special provision adapted to the case. The other party complains because the court entered judgment without costs. We think that his case was within the jurisdiction of justices of the peace, and that therefore he was not entitled to costs. If nothing different appear on another trial, the defendants below will be entitled to their costs. Judgment reversed, and a new trial awarded.