Case of Walker's Estate

The opinion of the court was delivered by Rogers, J. Samuel Walker, on the first day of March, 1820, made his last will and testament, and devised and bequeathed, unto his wife, Elizabeth Y. Walker, his two messuages and lots, situate on the south side of Sassafras street, between Delaware Front and Second streets, in the city of Philadelphia, with the appurtenances; also, all his household goods and furniture, moneys, bonds, mortgages, outstanding debts due and owing to him, and all other his personal estate, of what nature or kind soever. He devised to Thomas Betts and Joshua Canby, and the surviver of them, &c. certain other messuages, and lots of ground, (particularly describing them,) in trust for his son Samuel Jones Walker, &c. and after his decease, in trust for his children, &c. and for want of children, then for the separate use of his daughter, Ann D. Harper, Sic. He also devised to the same trustees certain other messuages, tenements, and lots of ground, &c., in trust, for the separate use of his daughter Ann D. Harper, &c. And lastly, he the said Samuel Walker wished it to be understood, as his will and intention, that the husband of his said daughter, Ann — 237 — D. Harper, shall not in any event, nor by reason of any cause, ways, or means whatsoever, have any right, claim,.or.interest in his estate, in right of his wife, or otherwise, nor receive any benefit or advantage therefrom. ' These devises included the whole property of the testator, at the time, but subsequent to' the date and making of the will, Samuel Walker acquired certain real estate. The' testator died the first day of December, 1824, without having republished his'will, or adding any codicil thereto, disposing of the said real estate, which' of course descended to his heirs at law. ■ The testator being indebted to various persons, the executors made an application to the Orphan’s Court, praying an order to sell the descended lands for the payment of debts, Elizabeth Y. Walker, the widow and legatee, claiming all the personal estate of the.testator, alleging, that the bequest to her is specific, exempted from the, payment of debts due-by the testator, and that the payment of them devolves upon the land descended to the heirs. The question between the heirs and the legatee is, which fund is primarily liable for the payment of debts. It is a general rule, that in the absence of. a contrary intention, the personal estate is the first and natural fund for the payment of debts. But the testator may substitute the real fund in the room of the personal, which may < be done, either by express words, or by a plain intention manifested by the different provisions of the will. The counsel, for the appellants, contend, that the lands descended, are primarily liable on two grounds. .First. That the legacy to the wife is specific, and secondly, That it is manifest,'the testator intended, that she should have the legacy, exempted from the payment of the debts. ■ A regular specific legacy may be defined, the bequest of a particular thing, or money specified and distinguished from all others of the same kind, as of a horse, or piece of plate, money in a purse, stock in the public funds, a security for money, which would immediately vest with the assent of the executor. 1 Roper, 149. There are also,’ bequests of general personal estate, which are •sometimes specific, as when the thing given'is distinguished and separated from the general estate, and specifically bequeathed, and capable of being delivered in specie. Thus, if A. bequeath to B. all his personal estate aí C. or in a particular house; or country, the legacy will be a specific. So a bequest of all the goods, &c. in a particular place, or of all the goods and chattels in á described country, or of all plate, linen and furniture in the testator’s house at A. or which shall be therein at the time of his decease; in such cases the bequests are specific, for they are confined in their extent, and fall within the description given of such legacies. The money, goods, &c. are so described by the testator, as to authorize the legatee to say to the executor, deliver the sum bequeathed to me, which is in a particular chest, bag or purse, or the goods which are in a particular .room, ,or — 238 — in a described country, or in the testator’s house at A. or which are there at the time of his decease. Sayer v. Sayer, 2 Vern. 688. Prec. in Ch. 392. 5 Ves. 150, 156. Nesbitt v. Murray, 8 Ves. 617. 623. Sadler v. Turner, 1 Bro. C. C. 129. 127. Moore v. Moore, 2 Vern. 538, Gayre v. Gayre, 2 Vern. 747. Shaftesbury v. Shaftesbury, 1 Roper, 185. But, when the language of the bequest is such that neither by reference to any collateral thing, can the money bequeathed be distinguished from the testator’s other moneys, nor a clear intention be perceived to give a specific part of his personal estate, such a bequest will be general. It does not fall within the description which has been given of a regular specific legacy. The legatee is unable to point out to the executor any particular sum of money, or chattel, that he can call his own, as he had the power to do in the instances enumerated. The legacy, therefore, must necessarily be general. Since then a bequest of personal estate requires, as before mentioned, to be limited or controlled to some particular place, or to be referred to, as in some person’s hands, in order to make it specific, it follows, that if there are no such restrictive expressions, a legacy of personal estate generally will be general. A bequest of all a person’s personal estate generally is not specific. The very terms of such a bequest show, that it is general, and even, if the real and personal estate were devised as here, neither the circumstance of the bequest of the personal property being in the same sentence as the real, the devise of which is necessarily specific, nor the circumstance of the real and personal being disposed of together, would be sufficient to constitute the disposition of the general personal property a specific legacy. 7 Ves. 137. Howe v. The Earl of Dartmouth. And what is this bequest but a disposition of all the personal estate of the testator l He bequeaths to the legatee all his household goods, and furniture, moneys, bonds, and mortgages, outstanding debts due and owing to him, and all his personal estate of what kind or nature, soever. He first enumerates the particulars of which his personal property consists, and then closes the sentence with a sweeping disposition of all his personal estate. It is as strong, but not more so, as if he had said, I give all my personal estate of what kind or nature soever, to Elizabeth Y. Walker. The enumeration of particulars does not affect the generally of the bequest. Precedents in Ch. 577. Amb. 566. 1 Merriv. 198. In the argument of the last case, the counsel say, in regard to the enumeration of articles, with which the clause in the will is introduced, he did not wish to be mistaken in contending, that such an enumeration alone will render a bequest specific. The whole bequest must be taken together, for the intention of the testator on this subject, as in every question on the construction of wills, is the principal object to be ascertained. It is, therefore, nécessary, that the intention be either expressed in reference to the thing bequeathed, or otherwise clearly appear from the will, to con — 239 — stitule the legacy specific. The presumption, both in law and equity, is in favour of general legacies, unless it can be clearly ascertained by the will, that the testator intended to confer on the legatee some article, of which he was at the time of making the will, possessed. And this is a rule of construction adopted for the benefit of the legatee. Amb. 310. Ellis v. Walker, 4 Bro, C. C. 345. Simmons v. Vallance, Ambler, 56y. Attorney-General v. Parkin, 1 Ves. Sen. 425. Avelyn v. Ward, 4 Ves. 555. Chaworth v. Beech, 4 Ves. 568. Innes v. Johnson, 1 Swinb. 244. 7 Ves. 522. Sibley v. Perry, 15 Ves. 388. Gillman v. Addely. It cannot be contended, with any hope of success, nor has it been attempted, that the testator intended to confine the bequest to his wife, to the property which he possessed at the making of the will. There is nothing in the will which indicates such an intention. And'yet specific bequests, as defined, are gifts, by will, either of some particular thing, or part thereof, or of some specified or identical fund, or article, or part thereof, of which the testator was possessed, at the time of making his toill, so as clearly to point out, what, in particular, was intended for the legatee. Preston on Legacies, page 83, and Ward on Legacies, 18, and the authorities there cited. Had the lands, which are specifically devised, been sold by Samuel Walker in his life-time, and converted into money, Elizabeth Y. Walker would hardly have contended that this was a specific bequest, which operated only on the personal estate of which the testator was possessed at the date of the will. In such a case we are warranted in believing she would have claimed all the personal property left at the death of the testator. And this, in effect, she does now. She never attempts to discriminate between the estate, held at the date of the will, and the estate of which he died possessed. She claims the whole personal effects, to which, for aught that appears, she is only entitled as a general legatee, and at the same time calls in the aid of the descended lands, on the ground that the legacy to her is specific, and not liable to the creditors, until the descended lands are exhausted. The general rule in marshalling assets, so far as regards this case, is thus settled. 1st. The personal estate, excepting specific bequests, or such of it as is.exempted from the payment of debts. 2d. The real estate which is appropriated in the will as a fund for their payment. 3d. The descended estate, whether the testator was seized of it when the will was made, or it was afterwards acquired. It has beén shown, that the legatee has no right to claim an exemption of the personal assets, on the ground that the bequest to her is specific. The next inquiry will be, whether any thing appears, which shows an intention on the part of the testator, to exempt his personal estate from the payment of debts. In order to exonerate this personal fund, the will must contain express words for that purpose, a clear, manifest intention, a. plain declaration, or a necessary inference, tantamount to express words. The question, in each particular case of exemption, resolves itself into this; Does there appear from the — 240 — whole testamentary disposition, taken together, an intention on the part of the testator, so expressed, as to convince a judicial mind, that it was meant not merely to charge the real estate, but so to charge it, as to exempt the personal! For it is not by an intention to charge the real, but by an intention to discharge the personal estate, that the question is to be decided. There is nothing in the will of Samuel Walker, clearly, which manifests an intention to charge his real estate with the payment of his debts, nor would that be necessary, as between the legatee and the heirs of the land descended, provided it was manifest he intended to exempt his personal estate ; and this is the great difficulty with which the legatee has to contend. And this intention we are required to infer, from something which has occurred since the date of the will. The testator disposed of all his property, real and personal, and as between the devisees in the will, it is not to be questioned, that the personal estate would be liable to the debts. It would be a singular construction, to infer an intention to charge lands with the payment of debts, which the testator acquired after making his will; and the case of Hayes v. Jackson, 6 Mass. R. 149. decides that a testator cannot, in his will, charge after purchased land any more than he can devise them. The case which bears the strongest analogy to the present, is the one just cited. The rule as laid down by Chief Justice Parsons, is applicable here. The case was this: The testator ordered his debts to be paid;.made a specific devise of certain lands to his sister, and devised all the residue of which he should die seized, to a residuary devisee. He died seized of lands purchased after the making of the will, which, of consequence, did not pass'. The executors applied for license to sell real estate for the payment of debts. The court directed them, first to sell the devised lands not included in the specific devise, and next, the lands which descended to the heirs. The Chief Justice says, “Jackson first provides that his debts and funeral charges be paid; he next bequeaths legacies to his nephews and neices, and makes a specific devise to his sister Susanna Gray. Then he gives to Mrs. Swan, in fee, all the remaining part of his estate, real and personal; the just construction of which is, when my debts and funeral charges, and the legacies are paid, and the specific devise to my sister is deducted, then what remains, whether real or personal, I devise, in fee, to Mrs. Swan.” In one respect, this is a stronger case than the present, for here the court ordered the real, as well as the personal estate, devised to Mrs. Swan, to be sold, before the descended lands. A distinction has been attempted between the cases, and it is true, that they are not in every feature exactly alike, which, indeed, is seldom,if ever, the case in precedents on the construction of wills. It is objected, that here there is no direction to pay debts, and that this is the case óf a primary, and not a residuary devisee. To this I answer, that every testator is presumed to know the law of the country in which he lives, and to make his will in reference to it. The estate of the testator is equally bound, without as with such a direction, and in the order that — 241 — has been indicated. Such a clause in the will, although usual, is by no means necessary in Pennsylvania. The personal fund is the first in order for the payment of debts, whether mentioned in the will or not, and this is not doubted, as between the devisee of the-real estate and the legatee, and how it can make any difference as regards the heirs of the descended lands, I am at a loss to discover. It is hardly necessary to quarrel about terms', but Elizabeth Y. Walker is nothing more nor less than a residuary legatee. The intention of the testator, at the time of the making of the will, most certainly was, that after his debts and funeral charges were paid, then what remained he bequeathed to his widow and legatee. If nothing remained, then nothing is bequeathed to her. It cannot in any sense be considered as a specific bequest of the remainder to her. The law creates the fund for the payment of the debts, and the testator bequeaths to her what remains, after satisfying the requisitions of the law. If this be the true reading of the will, then Elizabeth Y. Walker will get precisely what the testator intended she should have, viz. all that remained of-his personal estate, at the time of his death, after payment of the charges which the law imposes on the fund. And here it is material to observe, that this bequest is neither specific in the legal sense, nor in the sense in which it is sometimes so considered by a court of chancery. The amount of the bequest is not ascertained in the will. Whether more or less, depended upon the state of his property at the time of his death. It is not then specific as regards quantity or amount. In this respect it differs from an ascertained specific legacy, as say a legacy of five hundred pounds to A. It is to t he latter class of cases, that Lord Hardwicke refers, in Galton v. Hancock, when in speaking of the case of Clifton v. Burt, 1 P. Wms. 678, he says, “ This case proves that even general pecuniary legatees are to be preferred to an heir at law, much more a specific devisee of land, and this, too, in analogy to the rule of law; for every devisee is in the nature of a purchaser, and so it is laid down in Herbert’s case, 3 Co. 12, that the heir shall not have contribution against any purchaser, although, in rei ventóte, the purchaser came to the land, without any valuable consideration, for the consideration of the purchase is not material in such a case.” Tipping v. Tipping, Id. 729. A court of chancery considers the bequest so far specific, as to throw the debts of the deceased on the lands descended ; and it is difficult to discover any difference between such a bequest, and a bequest of a specific chattel. The testator indicates his intention that the legatee should have the one, as strongly as the other, and it is on the principle of intention, that in marshalling the assets, the court directs the creditors, who have liens upon two funds, to exhaust the lands descended, before they levy on the personal estates specifically devised. This is a contest between the legatee and the heirs of the testator, and not, as has been alleged, between her and the husband of Ann — 242 — D. Harper. It is true, that by this decision, he will acquire an interest in the estate, for life, and if this was real estate, which the testator owned, and which he had in contemplation when he made his will, there would be some strength in the argument. It would be wandering in a labyrinth of conjecture, to speculate about the reasons which prevented the testator from republishing his will, and disposing of his after-accjuired property. Nor can we be expected to deprive the heirs of the fee simple of the estate, merely in order to prevent the husband of one of them from acquiring an interest in it. Such a construction would, in all probability, defeat the general intention of the testator, for no person can read the will without perceiving that the children are as much the objects of his bounty, as the widow. But however strongly the testator may indicate his intention to exclude the husband of his daughter, it may be doubted whether this will affect after-acquired real estate. This principle is explicitly declared in Hays v. Jackson, 6 Mass. R. 156. The testator cannot, in his will, charge with the payment of his debts, after-purchased lands, any more than he can devise them. Decree of the Orphan’s Court affirmed.