Lord v. Lord , 22 Conn. 595 ( 1852 )

Ellsworth, J.

In the settlement of this estate, a question is raised between the devisees, how the balance of $4,000 shall be provided for,—as the executors have applied all the property, they were directed to apply, and nothing is left, but property which is specifically devised : one party contending it shall be paid exclusively out of the personal estate which is specifically devised, and the other, out of the personal and real, equally.

There is no question, that, as a general principle of law, personal property must be taken for debts, before real, and that, where it is all specifically devised, the same rule applies to it, as a class, i. e., the personal before the real. Brainard v. Cowdrey, 16 Conn. R., 502. 2 Jarman, 546. 1 2 Eq. Ca. Ab., 459. If there was nothing more in the case than this, we should hold with those who contend, that all the personal bequests must be taken before the land ; but, we do not hold, that the personal property which is given to the widow, in lieu of dower, is subject to this rule of contribution, and to that extent we might make an .exception ; for it is said in the books, she takes as a purchaser, and, therefore, is not subject to a contribution; and we are not certain, but our statute, p. 277, gives strength to this idea. But, this point we do not mean, at this time, absolutely to settle ; for it was not much discussed at the bar, nor indeed, of necessity, is „ it presented in the question raised. Of course, we leave this point as the case leaves it, and will only refer the counsel, if the point hereafter becomes important, to the following cases. 6 Met., 54. 6 Paige, 305. 6 Gill, 120. Amb., 245. 1 Rop. on Leg., 297, and 1 Russ., 543.

The chief dispute has been, whether the debt due from the testator, to Mrs. Marshall, of $1,996.50, as since ascertained, is to be paid by William M. Lord, on his own account, or as executor. If the former, then this debt is a lien on his specific share, and he must pay it and not charge the payment to the estate; if the latter, he is entitled to an order to sell, and may charge the payment to the estate.

This is purely á question of construction, and must be decided upon an examination of the will, in all its parts. This we have done, as well as we are able. The will was drawn by the testator himself, and, as it would seem, from time to time, as he thought of the matter, very immethodically, and so confused, as that it can not easily and satisfactorily be interpreted, on the point in dispute : and we are not, by any means, certain, that, after all, we interpret the will, in conformity to the testator’s intention.

In the first part of the will, the testator directs, that all his debts and funeral expenses shall be paid. This duty was imposed upon his two executors, and as an expression of intention, it shows the testator supposed his executors would pay his debts: for this duty we should not naturally look to any subsequent part of the will, for further intention; nor do we, on examination, find- any further intention, except an order to his executors, to pay a debt, (if it be one,) to the heirs of his brother, Enoch Lord. But this is not an ordinary debt, but one which requires some specific directions. With this qualification, the first clause in the will is the only order to the executors, to pay debts.

Now, where this debt, due Mrs. Marshall, is spoken of, further on in the will, the language is peculiar and significant. “ I will, order and direct, that my nephew, William M. Lord, pay Sarah L. Marshall, all the money which is due to her upon the writing,” &c. On its face, it is clearly a direction to his nephew William M. Lord, by name, not as executor, (and there were two executors, in the will,) to pay what remained of this debt. So we construe the will, following the language in its natural and obvious import. We do not feel authorized to do otherwise ; nor do we think the testator himself intended otherwise. He had, before this clause in the will, imposed private charges on his nephew, especially in relation to the annual support of the testator’s widow, and the preservation of his grave-yard, and fence about it; and we must believe he intended to extend this personal duty to William M. Lord, who was a liberal participant in the bounty of his uncle.

We find, too, in the paragraph next preceding the one in question, the executors are mentioned, and directed to pay certain legacies, as executors ; so, in the paragraph next following the one in question, the executors are, as such, directed to discharge a duty. Now, when, in this intermediate paragraph, he directs his nephew, William M. Lord, to pay a certain claim, we believe, he had in his mind, a distinction between executors and his nephew, William M. Lord. This is the result to which we have come, after much comparison of our views, and with some considerable confidence of the correctness of our decision.

We answer, then, the questions put to us : first, that the personal property is first liable; and secondly, the debt due Mrs. Marshall, is to be paid by William M. Lord, on his own account, and not as executor.

In this opinion the other judges concurred.