Risk's Appeal

Mr. Justice Green delivered the opinion of the court, October 5th, 1885. It seems to us this case is ruled by Walker’s Est., 3 R., 229. The terms of the bequest to the widow are practically identical with the bequest to the widow in that case. The language of James Risk’s will as to his personal estate is as follows: “ Fore My Wife Mary E. Risk to have all Bonds and all the income thereof and all money now on hand and all the Personal Property is hers.” Some of the personal property is mentioned, but that, and all other personal property are included under the general words, “ all the Personal Property is hers.” This is precisely what we held of the same kind of a bequest in Walker’s Estate. Then having given all his personal estate to his widow he makes no provision whatever for the payment of his debts or the expenses of his funeral or the settlement of his estate. In the next place he disposes of all his real estate by giving one half of it to his widow, one quarter to his brother William, and out of the remaining quarter he gives one thousand dollars to Samuel J. Risk and one hundred dollars to Robert B. Risk. If there is anything left out of this one quarter it is to be equally divided between the widow and Samuel J. Risk. There is absolutely nothing in the will from which an intent can be derived to relieve his personal estate of its ordinary duty of paying debts and expenses, and we can discover no reason, therefore, for departing from our ruling in Walker’s Estate, where we held that because no such intent was manifest the personal estate must first be applied to the payment of debts, and gave the remainder only to the widow. In the present case the legacies given [176] to the other legatees are far more specific than the legacy given to the widow. The latter is undoubtedly general and literally gives only what is left after debts and expenses are paid, all of which we expressly decided in Walker’s Estate. But here the decedent’s debts were but a trifle, less than $100. The remainder of the liabilities are all created after the testator’s death. Some of these are the costs and expenses incurred in selling the real estate, commissions of the accountant, the $800 claimed by the widow out of the real estate, and $197.60 expenses of the audit. It is evident that the most of these items ought to be paid out of the real estate. The Auditor, however, has proceeded upon the idea of charging the real estate with all the debts and expenses, and as the fund for distribution represents the proceeds of one fourth of the real estate, he charges it with one fourth of the debts and expenses. We do not see what fault th'e widow can find with this. It is in her ease and not to her detriment that this is done. She is a devisee of one half the real estate, and as such her devise would be chargeable with one half of the liabilities which it belongs particularly to the real estate to discharge. But she is legatee of all the personal estate with no expressed or implied testamentary intent that the personal estate shall be relieved of its duty to discharge all debts, funeral expenses, medical charges and its proportion of the expenses of settlement. The Auditor and court below, however, have relieved her personal legacy from that burthen, and have divided it between herself and others as devisees of the real estate. Of this no one complains but the widow and she has no cause of complaint. The rule that the widow is a favorite and takes as a purchaser and is to be preferred in certain contingencies is undoubtedly correct, but it has no application here. In McGlaughlin v. McGlaughlin, 12 Harr., 20, where it was applied, the legacy to the widow was specific, carrying the furniture and the personal chattels but not the securities and personal estate generally, and of course in such a case the latter are first applicable to the payment of debts and expenses. The case of Reed v. Reed, 9 Watts, 263, is equally inapplicable. No question of abatement for payment of debts arose. The widow and others were legatees of sums charged upon real estate and the proceeds of the real estate were not enough to pay all the legacies in full. We held that the widow was a preferred legatee as between herself and others of the same grade and must be paid in full first, and that whatever abatement was required must be suffered by the other legatees. Here the situation is entirely different. No abatement is required for payment of debts. The estate is amply sufficient for that purpose. [177] The legacy to the widow is not specific and no intent is expressed or can be implied that slie shall take the whole of the personal estate divested of its liability for debts and expenses. But nevertheless it is practically given to her by a decision which puts all the debts and all the expenses upon the whole of the real estate. The case presents really only a question of the apportionment of debts and expenses between real and personal funds. There is no question of abatement of legacies as between each other. There is enough to pay all the legatees in full. The record exhibits only an effort by one legatee to increase her legacy, or devise rather, by imposing upon the other devisees a duty which does not belong to them, that is, a duty to pay certain charges which are properly payable out of the whole of the fund and not out of a part of it. The widow claims that one fourth of the real estate shall pay the whole of the charges. „But there is nothing in the will indicative of such an intent, and as the charges are common to the whole of the real estate, in so far as they affect it at all, they are properly payable out of the whole and not out of a part exclusively. In so far as the debts and expenses, which are properly payable out of the personal estate, are imposed upon the real, the widow is favored by the decision of the court below and has no cause of complaint, and the other devisees make no complaint. In these circumstances there is nothing to justify a reversal of the decree of the court below. Decree affirmed and appeal dismissed at the cost of the appellant.