Ford v. Westervelt

The Ordinary. The debts of the testatrix are not referred to in her will, nor are they charged upon her lands by the will or codicil. The legacies are-all specific, and are not charged upon the land. It was suggested at the argument that the effect of the gift of the residue of the estate by the will in a blended mass of realty and personalty, was to charge the debts and legacies upon the realty as well as upon the personalty. I do not understand this to be the effect of the gift, for the will does not contain provision for the payment of debts; but, without deciding that question, I think that the codicil revokes the will’s gift of the residue in a blended mass. It manifests an intention to dispose of the entire residue by bequeathing all the personalty and giving realty only, as residuary estate. So far as the payment of debts was concerned, she was intestate. Personal estate is liable in the hands of the executors for the payment of debts, and the executors are required to discharge the debts thereout before they satisfy any description of legacy. There is no distinction in this respect in favor of specific legacies. 2 Wms. Ex. (R. & T. ed.) 653; Crosw. Ex. § 478 ; Schoul. Ex. & Adm. § 476; Shreve v. Shreve, 2 Stock. 391; S. C. on appeal, 2 C. E. Gr. 487; Coddington v. Bispham, 9 Stew. Eq. 224; S. [488] C. on appeal, 9 Stew. Eq. 576. If a debt be of a character to give the specific legatee who satisfies it or contributes to its payment an equity against the real estate, that is a matter to' be affirmatively urged by the legatee in the proper tribunal. The case considered is decided at this point, for chattels given as specific legacies of the value of $679, or of value more than enough to fully pay the debts, came to the executors’ hands. There was no deficiency of personal assets. The decree appealed from will be reversed.