Leavitt v. Wooster

Gilchrist J. It is made a question in this case, whether the appellant, has such an interest as authorizes him to bring the decree of the judge- of probate before this court, by appeal, and to be heard in relation to the account of the executrix. The testator devises all his real and personal estate to his wife for her life, provided. she should see that his daughter, Sally, had a decent support, and should pay certain legacies, and in case of the death of his wife, during the life of Sally, the estate was to become the property of his son Eleazer, he providing a decent maintenance for Sally. It becomes necessary to inquire what estate the executrix had-upon the death of the testator. It is very clear that the support of Sally is a charge upon all the estate, real and personal, devised to Lydia Wooster. It is upon the conditions of supporting Sally, and of paying certain legacies that she takes the property. There are no words importing a charge on the land in express terms. The testator says, t! you shall have all my estate for life, if you will support Sally, and will pay certain .legacies.” The devisee accepts the gift with the condition, by entering into possession of the property. The quantity of estate devised-to her is not a matter of doubt, as she is expressly limited to — 562 — an estate for life. There are numerous cases which hold that where a devise contains no words of limitation, and the payment of debts and legacies is made a personal charge upon the devisee, he takes a fee, by implication, unless there are other words in the will which limit the quantum of interest. But that question does not arise in this case, as the estate of the devisee is particularly described. Personal charges, however, do not raise, by implication, an express estate forlife, into an estate in fee. Doe vs. Wrighte, 2 B. & Ald. 710. But although the quantity of the estate vested in the devisee is not a question for our examination, still the decisions on the point whether the charge be on the devisee, or on the land, require examination. The estate may undergo no alteration, but the cases are authorities on the question of construction. There are numerous authorities where it has been held that the words of a will imposed a personal charge upon the devisee, and not upon the land. In Colliers case, 6 Coke 16, the devise was to the testator’s brother, he paying twenty shillings, and this was held to be a charge upon the person. In Doe vs. Holmes, 8 T. R. 1, the testator devised to A., “ she paying all my debts and legacies.” It was held that she was bound to pay the debts and legacies at all events, and that the charge was upon her, personally. In Goodtitle vs. Maddern, 4 East. 496, the devise was of all the rest of the testator’s property to his wife, “ so that she shall pay in good time all lawful debts,” and this was held to be a charge upon the person. The cases upon this subject are not altogether consistent, and it has sometimes been difficult to determine whether the words of a devise imported a charge on the person, so as to make the devisee personally liable for the debts or legacies, or whether they were to be paid out of the land. The particular inquiry before us is, whether' the testator’s expressions do, or do not require that the incumbrance of Sally’s support shall attach upon the land into whatsover hands it may fall. His intention is to be gathered — 563 — from his expressions, having regard to the purpose he desired to accomplish, which is to be carried into effect if it may be done consistently with the rules of law. Now the intention of the testator evidently was, to charge all his estate with the support of his daughter Sally. His wife is to have the estate for life, and is to support his daughter. After his wife’s death, if she should die before his daughter, he gives the estate to Eleazer, and then he is to support the daughter, and after the daughter’s death, Eleazer is to have a fee in the property, the word “estate” being sufficient for that purpose; Jackson vs. Delancy, 13 Johns. 537; Godfrey vs. Humphrey, 18 Pick. 537. And it is to be noticed that the only devise free from any condition or restriction whatever, is the devise to Eleazer after the decease of the daughter. He meant to provide a fund, cut of which his daughter would be sure of a support. If he had meant that such support should be simply a personal charge upon his wife, there would be no reason for the subsequent provision that Eleazer should provide it, and in no other way can this second provision be accounted for. In the case of Fox vs. Phelps, 17 Wend. 393, the testatrix devised lands to her sons Henry and Isaac, “ but on this condition, that after my decease the said premises, &c., be let, and the monies arising therefrom shall go and be applied by my executors for the maintenance, support and education of my two children.” It was held that this provision for the support of the children was a charge on the land in the hands of the devisees. Where an executor is devisee of the real estate, a direction even to him, (though describing him as executor,) to pay debts or legacies, will make them a charge on the realty. In Alcock vs. Sparhawk, 2 Vernon 228, the testator devised lands to A., his heir at law, and his heirs; he then gave a legacy to R, to be paid to his executor within five years after his decease, and appointed A., his executor, desiring him to see the will performed. It was held that the legacy was a charge upon the land devised to A. — 564 — A legacy is chargeable on land, where, from the whole will, it appears that such was the intent of the testator, although >the laud is not expressly charged with its payment. Kelsey vs. Deyo, 3 Cow. 133. In the case of Pickering vs. Pickering, 6 N. H. 120, the .testator devised certain lands to the defendant, provided he ■should pay the plaintiff $20.00, annually, during her life. A suit was brought for the legacy, and the plaintiff recovered, ■the legacy being treated as a charge on the land. In Veazey vs. Whitehouse, 10 N. H. Rep. 409, the testator devised the land of which he should die seized, to his son, and provided ■that the son, his heirs and assigns, should keep on the land, .certain stock for his daughters, so long as they should remain unmarried. It was held that this was a legacy charged on the land, and rendered the assignee of the land liable to an action in favor of the daughters, for the expense of keeping the stock. We are of opinion that the support of the testator’s daughter Sally, was a charge upon all the estate devised to the executrix. The motion to dismiss the appeal must therefore be overruled, as the appellant, being the assignee of the land, has an interest in the settlement of the account, which he has a right to protect. The land remains charged with the support of Sally, into whatever hands it comes. Where a devisee sold land charged with a legacy, it was decreed with interest and costs, as against the purchaser, out of the estate; Newman vs. Kent, 1 Mer. 240. In Shackleton vs. Shackleton, 2 Sim. & Stw. 242, land, charged with a legacy, was mortgaged by a devisee, and it wafe sold by order of the court of chancery, in order to raise the amount of the legacy. Sheldon vs. Purple, 15 Pick. 528. The charge here, is upon all the testator’s estate, real and personal. If the personalty in such case be sufficient to pay the legacies, it must first be resorted to, for it is the natural and legal fund for the payment of debts and legacies. Jack* — 565 — son vs. Harris; 8 Johns. 146; Van Alstyne vs. Spraker, 13 Wend. 586; Kelsey vs. Deyo, 3 Cowen 136; Livingston vs. Newkirk, 3 Johns. Ch. 319; Lee, Appellant, 18 Pick. 288; Brummel vs. Prothero, 3 Vesey 111. The provision for the support of Sally is doubtless a legacy. A direction, in a will to the executor, “ to support the testator’s aged father in sickness and in health,” has been held to be a legacy. Farwell vs. Jacobs, 4 Mass. 634, is an authority to this point, as are also the other cases cited by the counsel for the appellant. We have been referred to Davison vs. Gates, 11 Pick. 247, as an authority showing that the sureties were liable in the present case. But the liability of the sureties was not there discussed. The testator devised to his wife certain real and personal estate for her life, and charged upon the income of it the support of his mother. If that should be insufficient, the income of sixty acres of land, in addition, was to be added, and he made his wife his executrix. She rendered her account, and charged the estate with the support of the testator’s mother, and credited it with the income of the property, excepting the tract of sixty acres. It was held that the executrix did not take a fee, and that if the income of the other property were not sufficient to re-imburse the expenses of the mother’s support, the income of the sixty acres should be applied, to make up the deficiency. The account showed a large balance against the estate, and the decision seems to have been perfectly correct, as it merely required the executrix to apply the income according to the will. The other cases cited by the counsel on this point were not cases of legacies charged on land, and do not seem to us, therefore, precisely to meet the point now under consideration. .But this point has heretofore been considered and adjudged by this court. In the case of Gookin vs. True, 3 N. H. Rep. 288, an action of debt was brought upon a probate bond, to recover certain legacies charged upon land, and the devisee of the land had entered upon it. It was held that the — 566 — legacies could not be considered a charge upon the estate generally, which the executor was bound to pay; that their nonpayment was not a breach of the condition of the bond, and that the action could not he maintained. It was said that the devisee was the debtor, and not the estate of the testator. It is also to be inferred from the case of Veazey vs. Whitehouse, 10 N. H. Rep. 410, that where the charge is upon the land, the executor is not liable upon his bond. An action of assumpsit was brought, in that case, against the assignee of the land charged with the support of the testator’s daughters, and maintained, and such was the case, also, in Pickering vs. Pickering, 6 N. H. Rep. 120. The executrix may be considered as being in the same position she would occupy, if she were executrix merely, and a third person were legatee. So far as regards the support of the daughter, in that case, her only duty would be to deliver the property to the legatee, that he might execute the trust. In rendering her account, she might charge herself with the property as executrix, and she might discharge herself by-transferring it to the trustee. Here the two characters are united in one person, but it appears to us that the liabilities of each- are as distinct as if the persons were different. If another person had been the trustee, the sureties of the executrix would not have been liable for the performance of the trust. Where the duties of each character are distinguishable, why should the sureties for the performance of the ordinary duties of an executrix, be holden for the performance of duties of a different character ? And our opinion is, that this is not a trust which the executrix is bound to perform, in order to administer the estate according to the condition of the bond, and that the sureties are not liable. In relation to the costs, in this case, which we have been requested to determine upon, our opinion is, that neither party is entitled to costs. Of the questions submitted to us, some have been determined in favor of the appellant, and some in — 567 — favor of the appellee, and as neither party has been entirely right in the positions respectively assumed, we do not think that either is entitled to costs against the other. The executrix is entitled to charge the support of the daughter against the amount of the inventory of the personal property, and after the opinions above expressed, there will probably be no difficulty in settling the account. The executrix not being chargeable with the property, in her capacity as executrix, there is no balance either way, according to the report of the auditor, and the case must be remitted to the court of probate, for farther proceedings. A reversal of the decree is necessary, as upon the account as it now stands, a balance of $24.91 is found in favor of the executrix. Decree reversed.