Miller v. Cooch

The Chancellor. It is a general rule—a settled rule that the personal estate is the primary fund for the payment of funeral and testamentary expenses, debts, and legacies; .and this general rule must in every case be applied unless there appears from the whole or some part of the will that a testator intends that his real estate or its proceeds, either of rents or moneys raised upon the faith of it, or by sale, or in some other manner, shall be charged with their payment; and unless it further appears, in like manner, that he does not intend that his personal estate shall be charged with their payment. It must satisfactorily appear that he not only intends to" charge his real estate or its proceeds, but that he intends to discharge his personal estate from their payment. It was .formerly held that this intention must appear from express words in the will. This doctrine is nowhere maintained at the present day. Had it been strictly adhered to, and not departed from, much litigation would have been ■saved, and judicial decisions upon this subject would have been much more uniform and consistent. Courts have used different forms of expression in determining the rule to be applied in the solution of the question of primary liability between the personal and real estate. Some judges have said that the intention to make the real estate the primary fund must appear by implication plain ; others, by intention clear; others, by irresistible conclusion; others, that the mind of the judge must be convinced that he is deciding according to what the testator intended ; others, that the evidence of intention to charge the real estate and to discharge the personalty must be sufficient to satisfy the judicial mind. It was doubtless the intention of the testator in this case that every provision of his will should be carried into effect. He intended that his funeral expenses and debts should be paid; — 174 — that his wife should have his personal property and $3,500-out of the proceeds of his real estate; that Dillon Hutchinson should have $500; and that his two brothers should have the balance of his estate; and he intended that his real estate should be sold. He has not in express words said how, or out of what fund, the funeral expenses, debts, and legacy shall be paid. He has not expressly charged either the personal property or the proceeds of his real estate with their payment. He has not by express words exonerated either from their payment. The question to be decided is not whether they shall be paid, but what fund — the personal property, or the proceeds of the sale of the real estate — is primarily liable-for their payment. The intention of the testator, if that intention can be collected from his whole will or from any part of it, must determine this question. There is nothing-in this will to indicate the intention of the testator to charge-the real estate, or the proceeds of its sale, with the payment of the funeral expenses and debts, unless proof of that intention is afforded by the use of the words “balance of my estate,” in item 4 of his will. There is nothing in the will to show an intention to discharge the personal estate from their payment, unless proof of that intention is afforded by the words “ all my personal property,” in item 2 of the will. It will be observed that the testator has not in any manner or for any purpose blended his real with his personal estate, but has throughout his will clearly distinguished them.. He has not directed his real estate to be sold, and made the personal property and the proceeds of the sale of the land a-single fund for the payment of his debts, funeral expenses, and legacies, and left the surplus proceeds of the sale of the real estate undisposed of, as in the case of Sharpley v. Townsend, 4 Harrington, 337. In the latter case the court held that, under its particular circumstances, the sale of the real estate was a conversion out and out. In this case it nowhere appears that the testator ordered his real estate to be sold and to be blended with his personalty for any purpose ; and he has not left the proceeds of its sale undisposed of; but, to175 use the words of the will, he has devised, given, and bequeathed to his two brothers. the balance of his estate, to. be divided between them share and share alike. The personal estate having been before given away in item 2 of his will, the word “ balance,” in item 4, can have reference only to the-real estate or to the money arising from the sale of the real estate. The conversion under this will is therefore a conversion for the purposes of the will only, and not for all purposes, whatever, which would be necessary for the purposes of a conversion out and out. Had the bequest in item 2 of the will been “ my personal property,” instead ofall my personal property,” I presume it would not have been contended that the personal property was exempt from the payment of the-debts and funeral expenses. Do the words “ all my personal property ” have a fuller or more extensive meaning than the words “ my personal property?” Do not the latter words mean the same as-the former? Under certain circumstances, the word “all,” before personal property, appears to have been considered as-of considerable importance, and as showing an intention to bequeath such property as a whole, and not as a residue. In Viner’s Abridgment, vol. 8, there is a case in which the testator gave all his personal property to his wife, and £500 out. of the proceeds of the sale of his real estate, and devised his-real estate to trustees to be sold for the payment of his debts, and legacies. Ghcunoellor Harcourt decided in that case that the real estate devised for the payment of debts and legacies', was the primary fund for their payment, and remarked that it was manifest the testator thought that all his personal estate-was not sufficient for his wife, and therefore he gave her £500' out of the proceeds of the sale of his real estate. It will be observed, however, that in that case the real estate was-expressly devised to trustees to be sold for the payment of’ debts and legacies, of which the legacy to the wife was one.. This—which, however, would only ordinarily have made the proceeds of sale auxiliary to the personal estate for the payment of debts, and not the primary fund for their payment. — 176 — in exoneration of tlie personal estate — would to my mind have been a more satisfactory reason for the decision than the one assigned. Mr. Jarman, after reviewing the cases relating to this subject, remarks : “ They authorize the proposition that whenever the personal estate is bequeathed in terms as a whole, and not as a residue, and the debts, funeral and testamentary charges are thrown on the real estate, this constitutes the primary fund for their liquidation.” I know of no case, however, where it has been held that the bequest of personal estate, in terms, as a whole, and not as a residue, has been sufficient to make the real estate the primary fund for the payment of debts and legacies, when those debts and legacies have not been thrown upon the real ■estate otherwise than by the mere bequest of the whole or all of the personalty. They are not so thrown in this case, unless the intention that such a result should follow appears from a proper construction of the words “ the balance of my estate,” in item 4 of the will. Do those words have the effect, when taken in connection with the word “ all,” in item 2 of the will, to throw the debts, legacies, and funeral charges upon the real estate primarily, and in exoneration of the personal estate? What is the meaning of those words, and to what have they relation ? In my opinion the words “ balance of my estate ” mean, primarily, his real estate, or the balance of the proceeds of the sale of his real estate, after deducting from said proceeds of sale any sum or sums with which those proceeds have antecedently been charged; that the only primary charge upon those proceeds,—pretermitting, for the present, the question as to the legacy to Dillon Hutchinson,—is the sum of $3,500 bequeathed to his wife; and that, the personal estate being the primary fund for the payment of the funeral expenses and debts, the personal estate must first be exhausted before recourse can be had to this balance. If, after the payment of the debts, funeral and testamentary expenses out of the personal estate, there should be a deficiency, in whole or in part, — 177 — for the payment of the legacy of $500, or if, from a proper ■construction of the will, the personal estate should not be subject to its payment, and it should appear, when that question properly arises between parties who can raise the question, that the whole frame and scheme of the will plainly shows that the testator intended the legacy of $500 to be paid absolutely and at all events (to use the language of the court in the case of McLoughlin v. McLouqhlim, SO Barb. 469),— it will be time to determine the liability of the proceeds of the real estate for its payment. That question, however, is not now before the court. It ■can only be raised in a proceeding to which the legatee and the devisees of the balance of the estate shall be parties. I decline, however, to enter any decree unlegs it be for dismissal •of the bill, upon two grounds: (1) the bill is filed by the executor of a legatee for direction to the administrator cum testamento amnexo of the testator how to administer the estate, and not by the administrator asking such direction; and (2) the bill contains no sufficient prayer for relief. The parties having agreed that the bill should be amended so as to present a case for final decision, it was not dismissed, and the cause was continued with leave to amend according to the agreement of the parties, to be subsequently filed. Afterwards, at the February Term, 1877, the bill having been amended as per agreement filed, and the cause being submitted without further argument,— The Chancellor said : I adhere to the views heretofore expressed by me in respect to the primary liability of the testator’s personal estate for the payment of debts, funeral •and testamentary charges. I must, in the language of Sir B,. Malins, V. C., in Powell v. Riley, 12 Eq. Cas. 178, attribute to the testator the knowledge that his personal estate was the primary fund for the payment of his debts. With this knowledge he made his will, and nowhere therein declares, either expressly or by “ implication plain,” that he means to charge the real estate devised to his brothers with the payment of his debts, or that he means to exonerate his personal property therefrom. — 178 — In the case of Powell v. Riley, the vice-chancellor, while-holding that in that particular case the bequest to the wife-was specific, says: “ If the will had stopped after the bequest of all his household goods and furniture, live and dead farming-stock, money, and securities for money, goods, chattels, and effects, and all his other personal estate, to his wife, for her absolute use and benefit, it would not, of course, have-exonerated the personal property from the primary liability to pay debts.” “ It is true,” he subsequently remarks, “ I know no reason whatever, and I know of no authority that decides, that the words 11 give my household furniture ’ is-other than a specific bequest; ” and the solicitor for the complainant in this cause, if I understand him aright, was of' opinion that the bequest by William Gooch of all his personal property was a specific bequest, and therefore discharged from primary liability to pay his debts. In a case subsequent to the case of Powell v. Riley,— the case of Fairer v. Park, L. It. 3 Ch. D. 309,—it was held that “ a gift by will, by a testator to his wife, of ‘ all my personal property, all sums of money which I may possess or may be owing to me at the time of my decease, together with all the furniture, farming implements, and other things in the family mansion,’ was not specific.” In that case Hall, V. O., remarked: “ The only question on which-I wish to hear any argument is whether there was a specific-gift to Agnes Park.” After argument, the vice-chancellor-said : “ I am of opinion that, upon the true construction of this will, there is 'not a specific gift of ‘ all sums of money which I may possess or may be owing to me at the time of' my decease, together with all the furniture, farming implements, stock, and crops belonging to the Asby Hall estate, to the defendant, Agnes Park.’ ” The dispositions are, first of' all, a gift of “ all my personal property,” and then the words-which I have read are thrown in, not for the purpose of making anything specific, but for the purpose of preventing-the possibility of a question arising as to the specified things-being included under the terms “ all my personal property.” In the will under consideration the bequest of “ all my per — 179 — sonal property to my beloved wife, Tamar,” is specific in nootlier sense than as 'being distinguished from the testator’s-real estate, or the proceeds of such real estate; and “ all his-personal property,” being given to her, was so given subject to that primary liability for the payment of the testator’s, debts, funeral expenses, and testamentary charges, from which he has not in his will, either by express words or implication plain, relieved it. The will of the testator must, however, be reasonably interpreted. Having provided that his just debts and funeral expenses should be paid as soon after his decease as possible,, and then having given all his personal property and S3,500out of the proceeds of the sale of his real estate to his wife,, there remained nothing out of which to pay the legacy of $500 subsequently given to Dillon Hutchinson, except the* “ balance of his estate,”—the proceeds of the sale of the real estate after the $3,500 should be deducted. The $3,500 has-been paid by the person having the administration of the-estate of William Gooch, with money advanced by the devisees of the real estate. Dillon Hutchinson has died since the commencement of this suit, but his administrator is entitled, to receive, out of what the testator calls the “ balance of his-estate,” the legacy of $500, with interest thereon, or such part thereof as has not been-paid. I therefore direct that a decree be drawn for the payment-to the executor of Tamar Gooch, by the administrator of William Gooch, deceased, of the balance of the personal estate-of said deceased, after paying the just debts, funeral expenses,, and testamentary charges appearing on the account filed in this cause, with interest from the time when the same should, have been paid, together with the costs in this cause, within, three months, or attachment.