Jackson v. Bevins , 74 Conn. 96 ( 1901 )

So far as appears, the testator, at the time he made his will, owed no other debt than the one secured by a mortgage on the land devised to Mrs. Bevins. At later dates he incurred two other debts, each to the Ansonia Savings Bank, one for $2,000, the other for $1,000, and each secured by several mortgages on the two pieces of land devised to his wife. It is the existence of these latter debts which gives rise to the doubts sought to be resolved by this action.

Primarily the debts of any deceased person are payable out of his personal property. His real estate is not to be taken for such purpose till the personality is exhausted. Woerner on Adm. 1093; 4 Kent's Comm. *420. It is "a well-known rule, that, as between the real and personal representatives of all persons deceased, the personal estate in the hands of the executor or administrator is the primary and natural fund, which must be resorted to in the first instance for the payment of debts of every description, contracted by the testator or intestate." 3 Williams on Exrs. (6th Amer. Ed.) [1693]. Until quite recently our own statutes did not permit the real estate of a deceased person to be taken for his debts, except upon a finding that the debts exceeded the amount of the personal property, and then only so much of the real estate was to be taken as was sufficient to make up the difference.Shelton v. Hadlock, 62 Conn. 143; Coe's Appeal, 64 id. 352; Dorrance v. Raynsford, 67 id. 1. Thus, when a testator directs the payment of all his just debts, it is taken that the debts are to be paid from his personal property, unless he makes other provision, although the debts are secured by mortgage. Plimpton v. Fuller, 11 Allen, 139, 140; Gould v. Winthrop, 5 R. I. 319. In such case, if the mortgagee resorts to the land, the devisee may have reimbursement from the personal property of the testator. Hewes v. Dehon, 3 Gray, 205; 3 Williams on Exrs. (6th Amer. Ed.) [1694].

In the present case the testator expressly made one of the pieces of land which he devised to Mrs. Bevins subject to the mortgage thereon. She takes that land subject to the burden on it. She must pay that debt.

By the third paragraph of the will the testator undertook to dispose of the fund which came from the Odd Fellows Funeral Aid Association, as though it was a part of his own estate. In fact, it did not belong to him at all. It belonged to his wife. In this court she did not expressly claim that money as her own, nor did she expressly renounce it. Apparently she leaves it to the operation of the law. She does, however, claim the land devised to her by the second paragraph of the will; and as she does that, the law is clearly so that she cannot set up any claim to that money. Having elected to take a beneficial interest under this will, she cannot set up any right or claim of her own, even if otherwise legal and well founded, which will defeat, or in any way prevent, the full effect and operation of every part of the will. This rule has been discussed at some length by this court quite recently, and applied in several cases. FarmingtonSavings Bank v. Curran, 72 Conn. 342; Coe's Appeal, 64 id. 352; Carter's Appeal, 59 id. 576, 587.

By the law as there shown, it is the duty of the plaintiff, in the settlement of Mr. Jackson's estate, to treat that $1,500 as his property. It is her duty to follow, so far as may be, his directions. She should erect a monument in the cemetery and on the lot which he named. It should be a monument suitable to the character and family of the deceased, appropriate to the place where it is set, and adapted to perpetuate his name and memory. If it does this, even if it does not cost the entire $800, we think the purposes of the testator in this provision will be fully carried out. As to the matter of the cost the widow is to some extent given a discretion. The sum of $800 seems to be mentioned rather by the way of general description than as a fixed price.

She should pay the sum of $100 to the Pine Grove Cemetery Association of Ansonia, to be used as is set forth in the will. She must also pay the funeral expenses, and the expenses of settling the estate. The balance of the sum of $1,500, whatever it may be, she should apply to the payment of the debts of the testator. That is what the testator directed. At the time he made his will, all his debts then existing could have been paid from that money. After that time he incurred other debts to an amount much greater than that sum, and which cannot be paid therefrom. He did not change his will. The law charged these new debts on his general personal estate. They were evidenced by his notes and secured by mortgages on the two pieces of land devised by his will to his wife. It would, therefore, be the duty of his executrix to discharge them. Turner v. Laird, 68 Conn. 198,200. It may well be presumed that he allowed his will to remain unaltered in reliance upon this rule of law. After all this is done, so much of the personal property as is left falls into the rest and residue of the estate, and goes to Mrs. Bevins.

To recapitulate briefly: It is the duty of Mrs. Bevins to pay the mortgage on the land devised to her. The plaintiff is entitled to have the lands devised to her free from any mortgage lien. The $1,500 from the Odd Fellows Association must be treated as a part of Mr. Jackson's estate, and applied, so far as it goes, as he directed. The remaining portion of his debts not then paid, must be paid from the other personal property.

The Superior Court is advised to render judgment in accordance with the views herein expressed.

No costs will be taxed in this court in favor of either party.

In this opinion the other judges concurred.