Miller's & Bowman's Appeal

The opinion of the court was delivered, by Thompson, C. J. It seems to us, after due consideration, that the auditor and court below were fully justified by the terms of the will of Samuel Iieilner, deceased, in holding that he created no special charge and trust for the payment of debts upon his real estate. He seems to have supposed that his personal estate was ample for that purpose, and more; for after the clause providing for the payment of his “ honest debts,” he appropriates or devises the interest on outstanding debts and judgments to the comfortable maintenance of his wife and daughter; thus showing his opinion that his personal property was more than sufficient to pay all his debts. We must, therefore, look at the clauses of the will, wherein it is claimed that an express charge or trust upon his realty for the payment of debts, is to be found, in order to see if they mean that. In the first clause the testator gives and bequeaths to his wife all his household furniture, and residue of his personal property, as well as his real estate for her use, she to draw all the rents and interest that may become due on the same. This is the first clause in substance -in full. Then follows another sentence, “All outstanding debts and judgments, which can be collected by my executor hereafter mentioned, with the following conditions: After my honest debts are paid, she (my wife) can draw the interest and rents, if sufficient to maintain her and my daughter,” &e. It is argued that herein is an express trust created of the real estate to be concurrently liable with the personal estate for the payment of debts. That it is express is utterly untenable. If it be anything, it is but the implication of a trust. But would that supplant the charge created by law on the realty for the payment of debts ? Certainly I think not; and this the case of Agnew v. Fetterman, 4 Barr 56, shows. If it were an express trust, it would prevent the running of the Statute of Limitations against debts due by the intestate, let the time be ever so long before the execution of the trust. This would not be thought of, if that were the question here in the face of the decision in Agnew v. Fetterman. We regard, the clause insisted on as a charge upon the realty, as nothing more than a bungling mode of directing the payment of the testator’s debts, a clause which; as Chief Justice Gibson said in the case cited, “ from mere habits of expression, finds its way into almost every will, side by side with the formal disposition of the testator’s soul and body.” Certainly it is an almost universal thing for testators to direct the payment of “ debts and funeral expenses” in the outset of [407] tneir testamentary dispositions. This very illiterate man thought it ought to'appear in his will somewhere, and he gave it just such a location as to raise up a lawsuit, if it did nothing else, We do not think' he meant more than a direction to pay his debts. If he had intelligently intended to make the realty and personalty without distinction as to the order of time, a fund to'pay debts, it is strange that he did not authorize the executor to sell for that purpose, but he gave no power to anybody to sell for such a purpose. There was a conditional authority or power given to the widow to sell any part of the real estate devised for her use, if the rents, and interest on judgments and debts, were not sufficient to keep and ‘maintain Tier comfortably. She also was empowered, with the consent of “ my administrator and the rest of my family,” to sell all the property, and turn it into money, to be invested as directed, so that she and her daughter might have the interest. This did not operate as an equitable conversion, being simply a contingent authority, as in Bleight v. The Bank, 10 Barr 131; Anewalt’s Appeal, 6 Wright 414; Chew v. Nicklin, 9 Id. 84; nor did it break the descent. The sale never took place; at least we do not discover that it did. Throughout the will the real estate was devoted to the necessities, and control for that purpose of • the widow, and it is evident that the testator never thought of any portion of it going to the payment of debts. If it be needed for debts it remains for that purpose and is liable to be so appropriated by order of the Orphans’ Court. The rule of the English cases, on a question of this kind, is' different from ours, as is shown in Buehler’s Heirs v. Buffington et al., 7 Wright 278, by Lowrie, C. J., for the reason that the realty is not a fund there for the payment of general creditors ; and charges and trusts for this purpose can only be executed in chancery. Hence it is, that as that is the only mode of reaching the realty, these trusts for such purposes are more readily sustained than here, where the only advantage is, as has been said, to save the trouble and expense of obtaining from the Orphans’ Court an order of sale. We are of opinion for these reasons, therefore, that the rents in the hands of the -executor were not distributable to creditors, but belonged to the heirs, and that the decree in the court below is to be affirmed. Decree affirmed at the costs of the appellants.