Jones v. . Huntley , 156 N.C. 410 ( 1911 )

This was a petition to sell land to make assets, filed by the executor of Elijah D. Huntley against his heirs at law. The sole question presented was the construction of the will as set out upon the following facts agreed:

"Elijah D. Huntley died on 13 December, 1902, leaving a will, two of the items of which are as follows:

"First. I hereby give and bequeath to Miss Hattie Hasty, of the said county and State, my insurance policy of one thousand dollars ($1,000) in the Phoenix Mutual Life Insurance Company of Hartford, Conn., bearing date 17 November, 1902; and it is my will and desire that she, the said Miss Hattie Hasty, shall have all the benefits accuring thereunder, in the event of my death.

"Second, I desire that my debts (if any) and burial expenses be paid out of any other property of which I die possessed, after which the balance of my personal property and real estate shall be divided between my legal heirs as the law may direct."

The plaintiff qualified as his executor. The testator did not at his death have sufficient personal property other than the insurance policy referred to in item 1, to pay the debts and burial expenses. The plaintiff used $400 of the proceeds of the insurance for the payment of debts.

The testator at the time of his death was the owner of an interest in the remainder in some lands in Anson County. The plaintiff (412) brought this action to sell these lands for the purpose of reimbursing the legatee for the amount of the policy which had been used for the payment of debts.

From the judgment the defendants appealed. The judgment of his Honor was correct, and so fully states his reasons that we reproduce it as the opinion of this Court.

"The court is of the opinion, and so adjudges, that the said policy of insurance, or proceeds thereof, is and was intended by the testator to be an absolute, specific legacy; and the land mentioned in the second clause not being specifically devised, and the intention of testator appearing in the will that the property so mentioned in item 2 should be subject to the payment of debts in exoneration of the said policy, it is ordered and adjudged that if it shall be found that there is not sufficient personal property, other than the proceeds of the policy, to pay the debts of the testator, that the plaintiff as executor have license to sell the land to pay the debts, and that the policy, or the proceeds of the same, shall not be liable until all the property, real and personal, mentioned or referred to in the second clause of the will be exhausted."

Ordinarily, the personalty must first be exhausted before recourse can be had for the payment of debts to the realty. But the testator can change this order. The prime consideration in the construction of a will is the intent. As to that there can be no doubt upon the face of the will. The testator intended that the property in item 2 of the will should be charged with the payment of debts and burial expenses in exoneration of the property mentioned in item 1. By item 1 the testator bequeathed, not "$1,000," but his "insurance policy of $1,000," using the words one thousand dollars as descriptive of the policy. His intention to make the policy a specific bequest is further manifested by his description of it, giving the name and location of the company, (413) the amount, the date. The further words, that "the said Miss Hattie Hasty shall have all the benefits accruing thereunder in the event of my death," show clearly that he intended it should be specifically exonerated from the payment of debts. This intent he further indicates by providing in section 2 that his debts and burial expenses should "be paid out of any other property of which I shall die possessed." He further adds to this by saying "after which" the balance of his personal and real property should be divided between his legal heirs as the law may direct.

The words "other property of which I shall die possessed, after which the balance of my personal property and real estate shall be divided, etc.," include the ownership of an interest in remainder of lands. Revisal, 3140.

The intent of the will seems to us so plain that no citation of authorities could throw any additional light upon its construction. The judgment of his Honor is in all respects

Affirmed.