Nash v. Ober

Mr. Justice Shepard delivered the opinion of the Court: The appellant’s exceptions raise the question of the right of the executor to appropriate the dividends of their stock to the payment of anything beyond the funeral expenses, there having been no unpaid debts of testatrix proved against her estate. We think these exceptions well taken. The bequest of the stock clearly creates a specific legacy; con-' sequently the dividends accruing after the decease of the testatrix became the property of the legatees, subject only to the charge created by the will. Specific legacies are not liable to abatement with .general legacies, nor subject to contribution with them to pay debts. Necessarily, then, the residuary bequest must always be exhausted before specific legacies can be called on to contribute to the payment of debts. Though called a residuary legacy- generally, it can hardly be called a legacy in the ordinary sense of the term; for the words “ rest ” and “ residue ” can only apply to that which remains after the payment of debts, legacies proper and legal charges. The charges and costs of administration are not made a-charge- upon these dividends by the words of the will. Funeral expenses come nearer being debts than do the commissions and charges, but they are singled out and made a special charge upon the dividends. The testatrix does not charge them with debts in general terms, but with “debts if I leave any unpaid.” Taking the words of the will, it appears plain to us that the testatrix intended only to charge the special legacies — 309 — with debts in the most restricted sense of the term. If, however, the intent of the testatrix were not plain, and she had used the word “ debts ” alone, without any words of limitation or qualification, the construction would be the same. The term debts, without explanatory words clearly extending their meaning, does not include liabilities arising after the decease, or charges imposed by law. Hawkins v. Hawkins, L. R., 13 Ch. Div., 470; Gaines v. Reutch, 64 Md., 517; Carey v. Dennis, 13 Md., 1; Hollam v. Bennett, 44 Miss., 323. The case of Hawkins v. Hawkins, is directly in point. The testator, after charging a certain fund with the payment of his debts and funeral expenses, bequeathed the interest accruing on the remainder to Sarah Hawkins. All the residue of the estate was bequeathed to J. H. Hawkins, who "was also appointed executor. Part of this residuary estate consisted of a house held at rack rent for .the residue of a term of twenty-one years from August 1, 1865, under the usual covenants requiring the lessee to keep the improvements in repair. The leasehold had become valueless and the executor treated with the landlord for a surrender in order to escape the liability to repairs. The surrender was accepted upon the payment of £242,1 on account of rent arrears and dilapidation. This entire sum he charged against the fund, the income of which had been bequeathed to said Sarah Hawkins. His right to do so was sustained in the court below, but upon appeal the order was reversed, except as to so much of the sum as covered the arrears of rent due at the time of the testator’s death, which was held to be a debt. With respect to the claim or charge for dilapidation, the appellate court said: “This liability was not a debt but a liability of the estate, and as such under the will could not be charged against the specific legacy, but must be paid out of the residuary bequest.” There is nothing in the contention that the receipts given by appellants to the executor upon the delivery to them of the stock certificates, after the account had been passed, — 310 — estop them from claiming the balance due on the dividends. The order overruling the exceptions must be reversed, with costs to the appellants, and the cause remanded to the court below for further proceedings, wherein the account will be restated in accordance with this opinion. It is so ordered.