Bush v. Cunningham's Executors

A. J. WALKER, C. J. The clause subjoined to-the bequest to the children .of Ansel Cunningham — but the .amount I now am indebted to them is deducted, both real .and personal” — does not exempt thectes,tutor’s estate from the payment of the debts due to the children, of Ansel ¿Cunningham, or impose upon them, the abandonment of those debts as a condition upon which they should take the .¡legacy. Its entire effect .is to require a deduction from the .legacy of the amount of the debts. If it required am .abandonment of the debts, there would be a loss of the .debts to those-.children, as well .as .a .deduction of the ..amount, The children h&ye a right to collect the debts . from flie estate; but, in ascertaining their legacy, there is to be.a deduction of the amount of .the debts. We understand the clause to require that a deduction from the entire [72] Ifegacy of the children collectively is to be made of the gross or aggregate amount of the indebtedness, and not that there is to be a deduction from the several shares of the' respective children of the distinct amounts which may be due them separately. The deduction is evidently made a. common burden upon all the children. In ascertaining the legacy to be divided among the children of Ansel Cunningham, the following is the plan to be"' pursued: After the satisfaction of the debts and expenses- and cost of administration,' the bequests4o the widow must be taken out j then, to the residuurxnmust be added the amount of the testator’s indebtedness to the children of Ansel Cunningham, andfthe residuum thus increased must be divided into three equal parts; of these three parts., one must be assigned to William J. Cunningham ; one to-James M. Montgomery, Julian Jacks,on, and Evaline Lane, to be equally divided between them ; and the remaining? third, after deducting the amount of the indebtedness-before added to the residuum, must be equally divide# among the children of Ansel Cunningham. The indebtedness to the children of Ansel Cunningham must be brought into hotchpot; otherwise, there would be a balance not distributed under the will, — a result which it was evidently the purpose of the testator to avoid. This will be apparent upon making a review of the 'process of distribution upon a different plan. Let the actual residuum, after the reduction of the widow’s legacy, be divided into three equal parts, and then let a sum equal to the indebtedness to Ansel Cunningham’s children be deducted from their share, and there would be an intestacy as to the sum deducted.. This result, which is inconsistent with the testator’s intention, is avoided by adding., the amount to be deducted to the residuum to be divided into three equal parts. Freni this exposition of the plan of calculation to be adopted, it becomes clear, that, proof as to the amount of the testator’s indebtedness-to -the children of Ansel Cunningham is indispensable to the ascertainment of their distributive share ;„,an&..it;is. totally impossible to determine [73] what is the distributive share of those children, or any one or more of them, without such proof; and it is equally impossible to determine, in the absence of such proof, whether the probate judge could, with safety to the estate, decree to them, in advance of a final settlement, any definite amount on account of their legacies ; for it may be that the aggregate amount of the indebtedness will absorb the legacy. [2.] It was shown that the testator was indebted to the above-named children on two accounts; but as to the amount of indebtedness on one account there was no proof. The onus of making that proof was upon, the petitioners. The amount of the indebtedness was a matter which we must presume to have been as much within the knowledge of the petitioners, as of the executors. It was not defensive matter; to be brought forward' by the executors. It was an element to be affirmatively considered in ascertaining whether the petitioners were entitled to the-decree sought. Under-section 1-77-5, ik devolved upon the petitioners to show that they were legatees, and that after the payment to them of some amount there would be a sufficiency of assets to pay all the debts, charges, and other-legacies entitled to priority. This, we decide, they have not done. [3,]' A part of the testator’s indebtedness to the children', mentioned in the will, arises out of the fact of his making: an unauthorized sale of their interest in a tract of land... Those who are infants have not elected to ratify the side and take their share of the purchase-money, and are incapable from infancy of making that election. An election-* can only be made for them by the chancery court. The amount of indebtedness depends upon that election. It would, Therefore, seem that the appropriate forum for the settlemént of the estate and the ascertainment of the legacies of the above-named children would be the chancery court. Decree affirmed.