Hamilton v. Buckman

Dodge, J. Two points or assignments of error are urged by the appellant: First, that the finding of an intent to charge the money legacies upon the real estate given to the two sons by the residuary clause of the will is not justified by the language of the will, either alone or in conjunction with the collateral facts and circumstances; secondly, that, if so charged, the personal assets are primarily liable, and are not shown to have been exhausted. Under the first head, we shall not deem it necessary to decide the full scope of the role of law quite vigorously debated in the contesting briefs, as to whether, in all cases of the bestowal of a mere residuum of mixed real and personal property, there must arise an inference of intent to charge specific money legacies upon the whole of that residuum, including the real estate, to which the following among other authorities are applicable: Greville v. Browne, 7 H. L. Cas. 689; Lewis v. Darling, 16 How. (U. S.) 1; Lupton v. Lupton, 2 Johns. Ch. 614; McCorn v. McCorn, 100 N. Y. 511, 3 N. E. 480; Will of Root, 81 Wis. 263, 267, 51 N. W. 435. In this case the court has found such an intent by inference from facts practically undisputed. The first of these, of course, is the language of the residuary clause itself, which only gives to the two sons the real and personal property, “with the exception of the above-named bequests;” clearly indicating the purpose of the testator that such bequests should be paid, in any event, before the two sons received anything. To this may be added the further facts that the total personal estate, other than household goods, was only about $10,700; that the money bequests, including the money [173] to be paid to the son Edward A. to equalize between him and James R., exceeded that amount by about $2,000; that the widow, who at the time of the making of the will was some seven years younger than her husband, was vigorous in health, and might have been expected to survive him a number of years, and, under her right to dispose of any and all personal property and use up the proceeds for her support, might well have exhausted the whole of this personalty before the time for the payment of the money legacies arrived. A further fact of significance is that the residuum is left to the two sons, who are also named as executors, with the request that they be absolved from giving bonds, and who, therefore, the testator desired should become vested with authority to deal with the personal property in discretion, with the resulting power, at least, to dissipate the same, so that whatever did remain after the death of the widow, might be placed beyond the reach of the money' legatees. From these and certain other facts not necessary to specify, we are convinced that the above-mentioned finding of the trial court is sustained by the evidence. The efficacy of such and similar facts to support inference of such intent is discussed in the following cases: McCorn v. McCorn, supra; Estate of Goodrich, 38 Wis. 492; Will of Root, supra. Counsel for appellant, however, invoke another rule, which, as a generality, is well recognized — that personalty is the primary source from which debts and legacies are payable, and therefore real estate, even though it be, in law, chargeable therewith, can be resorted to only in case of deficiency of personal assets. To this they add the rule that the deficiency must be of assets left by the testator, not merely a deficiency resulting from misapplication or devasta-vit by the executors. These rules are supported by much reason when invoked as between legatees and mere devisees, one or the other of whom must innocently suffer because of fault of the executor, over whose conduct the legatee has bad [174] quite as much control as the devisee. It cannot, however, be patiently beard in a court of equity, when the devisee is also the executor, who, having received both the personal and real property, has by bis own wrongful act caused the deficiency in the former. In such case most obvious principles of equity and justice exclude him from any benefit or protection as against the innocent legatee. Wyckoff v. Wyckoff, 48 N. J. Eq. 113, 21 Atl. 287. In the instant case, if there were any personal assets in the estate after the death of the widow, they were taken by James R. Austin, withdrawn from this state, and applied to bis own uses, and by reason of such conduct are wholly unavailable for the payment of the plaintiff legatees. Tie certainly must be estopped to assert the existence of such assets in exoneration of the realty which be takes subject to these legacies. Of course, bis judgment creditor, wbo is the sole appellant, stands in no better position than the executor himself. Such judgment is a lien merely on whatever interest James has in the realty, and is subject to all equities therein in favor of others. From the views already expressed, the conclusion is obvious that certainly as against this appellant the plaintiffs are entitled to have the real estate described in the judgment applied to the legacies which are a charge upon it, and to have it sold, and its proceeds brought into court for distribution. The details of administration in accomplishing this result are not complained of. They are at least adapted to the result, and warranted by the law as applied to the situation. We find nothing of error in the judgment in any wise prejudicial to the appellant. By the Court. — Judgment affirmed.