Coffey v. Bacciocco

Goebel, J. The question presented is this : Whether the real estate (there being an insufficiency of personal assets) is chargeable with the payment of legacies. The personal estate is the primary fund for the payment of debts and legacies. If the testator, therefore, gives a legacy without specifying who shall pay it or out of what fund it shall be paid, the legal presumption is that he intended that it should be paid out of his personal estate only, and if that is not [166] sufficient, the legacy fails. Harris v. Fly, 7 Paige, (N. Y.) Ch. 421; Geiger v. Worth, 17 O. St. 568. Real estate is never charged with pecuniary legacies unless the testator intended it should be, and that intention must be either expressly declared or fairly and satisfactorily inferred from the language and disposition of the will. Reynolds v. Reynolds, Exrs., 16 N. Y. 257 ; Lupton v. Lupton, 2 Johnson, Ch. 614; Eavenso's Appeal, 84 Pa. St. 172. The exception to the general rule that the personal estate is the first fund 'for the payment of legacies was made by the Supreme Court of the United States in Lewis v. Darling, 16 Howard, 1, wherein the court held that real estate will be charged with the payment of legacies where a testator gives several legacies, and then, without creating an express trust to pay them, makes a general residuary disposition of the whole estate, blending the realty and personalty together in one fund, upon the theory that in such a case the residue can only mean what remains after satisfying the previous gifts. Davis’ Appeal, 83 Pa. St. 348. In the case of Harris v. Fly, 7 Paige (N. Y.) Ch. 421, where the testator by his will devised his farm to his son subject to the life estate of his wife, and then gave to each of his daughters a legacy of $1,000, to be paid by the son in six annual payments from the death of his mother, and made the son his residuary [167] devisee and legatee, it was held that the legacies to the daughters were an equitable charge upon the farm devised to the son, the personal estate of the testator being insufficient to pay the legacies. So the court, in Yearly v. Long et al., 40 Ohio St. 27, where a testator devised all of his real estate to his son, he, however, to pay the testator’s daughter a legacy in annual installments, held that the legacy was an equitable charge upon the estate devised. The theory upon which these cases were decided' is, that the legacy vested upon the acceptance by the devisee of the devise to him on condition of its payment. In England the doctrine is well settled that a bequest of legacies, followed by a gift of all'of the residue of the testator’s real and personal property, operates to charge the entire property with the legacies. Hassell v. Hassell, 2 Dick. 527 ; Bench v. Biles, 4 Madd. 187; Cole v. Turner, 4 Russ. 376; Mirehouse v. Scaife, 2 Myl. & Cr. 695 ; Kidney v. Coussmaher, 1 Ves. Jr. 436; Same Case, 2 Ves. Jr. 267. And this doctrine has been followed in McLanahan v. Wyant, 1 Penn. 96; Adams v. Bracket, 5 Met. (Mass.) 280; Witman v. Norton, 6 Bin. 395 ; Downman v. Rust, 6 Rand. 587. That real estate is not as of course charged with the payment of legacies, has been recognized in Ohio in Clyde v. Simpson, 4 O. S. 445, in which the court [168] held that between the mere objects of testator’s bounty, where he had giren a pecuniary legacy resting upon and payable from the personal fund to one, and devised real estate to another, and the personal fund proves insufficient, there can be no reason for disappointing the devisee rather than the legatee, or for shifting the loss from him, upon whom the law casts it, to one the law does not affect until it is made unmistakably to appear that the testator so intended. Without such clear manifestation of intention, there is great danger of interfering with his wishes. The language of the will ought to be so explicit as to leave no doubt in the mind of the court that the testator actually ’contemplated such a contingency and intended to provide against it. A mere direction of a testator that a devisee shall pay a legacy, does not create a charge upon the land. There must be express words of necessary implication from the whole will that such was the intention. Cables’ Appeal, 91 Penn. St. 327; Walters’ Appeal, 95 Penn. St, 305. It must be conceded that it requires no express words to charge pecuniary legacies upon real estate. An intention to do so may be derived by implication, and will be effectual when found to exist in any form, because the law seeks only to discover and carry out the purpose of the testator. The legacies here are pecuniary legacies, without [169] any provision in the will by whom or out of what fund they are to be paid. We may fairly infer from the will that the testator intended that they should be paid out of the personal estate. It was competent for the testator to make them a charge upon the real estate or not, as he saw proper. We may fairly assume that at the time of the making of his will he had sufficient personal assets to pay the legacies ; and this is strengthened by the fact that in his will there are no direct words of charge, nor does it contain any of those expressions from which a charge may be implied. It does not direct any person to pay the legacies, nor are they coupled with a devise of real estate upon which a condition-to pay is imposed. The real property is devised without conditions, except that the trustee shall hold the real estate intact for .ten years, nor is the devise made subject to the legacies. For the reasons given the demurrer will be sustained and the petition will be dismissed.