Higbie v. Morris

The opinion of the court was delivered by Dixon, J. By her will, Rosetta E. -Higbie, gave several bequests of" specific articles and of sums of money, and then declared “the foregoing money bequests are to be paid without interest, and entirely-from money or negotiable securities belonging to my estate at the time of my death after the payment of all my just debts and funeral expenses, and if after such payment there shall not be sufficient residue to pay said money legacies-in full, then in such event they are to abate pro rata.” Her will then proceeded: '“ I give, devise and bequeath unto my granddaughter, Mary L. Higbie, all’ my right, title and interest in and to the premises at the corner of Third and-Ninth streets, in Plainfield, and to her heirs and assigns forever. “All the rest, residue and remainder of my estate, both real and personal,, wherever the same may be, I give, devise and bequeath unto my grandson, William M. Higbie, to his heirs, executors, administrators and assigns forever.”' When the will was made and when the testatrix died, thePlainfield property was encumbered by two mortgages securing personal bonds of the testatrix. On bill filed by the executors, the chancellor decreed that Mary L. Higbie was entitled to have these bonds paid out of the ■ residuary estate, both personal and real. From this decree William M. Higbie appeals. On reading this will with the sole object of discovering the • mind of the testatrix, and without regard to any legal rules-which may have been established for the construction of such instruments, these two purposes seem to be plainly implied — one, that her just debts should be paid out of her money and negotiable securities, the other, that her granddaughter should have • not necessarily an absolute title to the Plainfield property, but the right, title and interest of the testatrix therein. When we - [177] remember that the right, title and interest of the testatrix in the Plainfield property consisted of the fee encumbered by two of her just debts, a doubt at once arises whether she intended those debts to be included among the debts that were to be paid out of her money and negotiable securities, or intended them to remain charged upon the Plainfield property only. The most satisfactory solution of the doubt thus engendered is found in the legal rule, that the personal estate of a testator is the primary fund for the payment of his debts, even though the debts be secured by mortgage upon his realty, and that the personalty will not be exonerated from this primary liability merely because the testator has evinced a purpose to charge his debts upon his real estate, unless lie has clearly indicated an intention to discharge his personal property therefrom. Whitehead v. Gibbons, 2 Stock. 230; Keene v. Munn, 1 C. E. Gr. 398; Shreve v. Shreve, 2 C. E. Gr. 487; Slack v. Emery, 3 Stew. Eq. 458; 3 Wms. Exrs. (R. & T.) 161, *1578. While therefore this will does not show that the testatrix intended that her granddaughter should have the Plainfield property discharged of the mortgage debts, it cannot be said to show that she designed to have her personal estate relieved of its legal liability as a primary fund for the payment of those debts; and consequently the residuary legatee can take only so much personal property as may be left after the mortgages are satisfied. But with regard to the residuary real estate, a different result must be reached. Aside from statutory provisions, executors have no power to use the lands of the testator for the payment of his debts, except so far as an intent to give them such power appears in the will. The present will gives the executors no power whatever to devote any portion of the realty to the payment of the debts secured by mortgage on the Plainfield property. There is no general direction that debts shall be paid, from which to infer a charge of the debts upon the residuary realty. Except the legal rule as to the payment of debts out of personalty, above mentioned, there is nothing to repel the implication, contained in the form of the devise to Mary L. Higbie, that she was to take the Plainfield [178] property encumbered with the mortgage debts. As between her and the residuary devisee, the law is indifferent, and therefore this implied intention of the testatrix should prevail. So far as the decree below subjects the residuary real estate to the payment of these debts in exoneration of the mortgaged premises, it must be reversed. For reversal — Dixon, Garrison, Lippincott, Magie, Reed, Van Syckel, Bogert, Brown, Krueger, Sims — 10. For affirmance — None.