Currie v. Murphy , 35 Miss. 473 ( 1858 )

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a decree of the Court of Probates, of Kemper county. The proceeding, in its inception, was a petition for distribution, filed by the appellees, who claimed as legatees, under the will of Jacob Odom, deceased.

By the decree, it was held, that the debts of the testator, the funeral charges, and the costs and expenses of administration, were not chargeable upon the residuary fund, but were payable out of the “money, notes, accounts, and evidences of debt,” bequeathed to Mrs. Jane Odom, the widow of the testator. This is the first and principal ground of objection to the decree, and necessarily involves a construction of the will of the deceased, the provisions of which are, substantially, as follow, to wit: By the first clause, the testator gave to his wife, Mrs. Jane Odom, a number of slaves, named and particularly described; also, all his household and kitchen furniture of every description, not subsequently and specifically disposed of by the will; likewise, all of his money, notes, accounts, evidences of debt of every description, and choses in action, which should remain after the payment of his debts and the legacies thereinafter bestowed; and also certain real estate. These bequests and this devise, were declared to be in lieu of the dower of Mrs. Odom.

In the eleven following clauses, specific bequests and pecuniary legacies were given to other persons. And, by the fourteenth and last clause, it was declared that the residue of the testator’s property, both real and personal, not thereinbefore devised, should be sold by his executors, and the proceeds thereof equally divided between his wife and certain other persons, to whom, in the preceding clauses of the will, legacies had been given.

It is evident, from this statement of the provisions of the will: 1. That the testator’s entire estate was disposed of; and 2. That the residue to which the legatees, named in the fourteenth clause, were entitled, did not embrace any part of the money, notes, accounts, evidences of debt, and choses in action, of which the testator was possessed at the time of his death, as these were bequeathed to Mrs. Odom by the first clause, and the residuum, by the express declaration of the testator, was to consist alone, of the proceeds of the sale of the real and personal property, not previously devised or bequeathed.

Where the testator has not directed, that a particular part of his estate shall be applied to the payment of the debts, the rule is well settled that the residuary legatees have no right to call upon particular general legatees to abate. The whole personal estate, not specifically bequeathed, must be exhausted before those legatees can be compelled to contribute anything out of their bequest. 2 Lomax on Ex’ors, 126. But where, in consequence of the testator having directed a certain part of his estate to be applied in payment of his debts before the rest, residuary legacies may have a preference over other legacies. Browne v. Groombridge, 4 Madd. R. 495; Choat v. Yeats, 1 Jacob & Walker, 102.

Conceding, for the present, that the will contains no direction to apply that particular part of the estate to the payment of the debts, it is clear that the debts, funeral expenses, &c., were properly chargeable upon the residuum, and that no part of the money, notes, &c., bequeathed to Mrs. Odom, should have been appropriated to those purposes.

And if there be, in point of fact, no such direction in the will, there is another consideration, which in the present case, fortifies the rule that the whole of the personal estate must be exhausted, before the particular general legatees can be obliged to contribute anything from their bequest.

The property bequeathed in the first clause, was given expressly in lieu of the dower of the legatee. Mrs. Odom is, hence, to be regarded as a purchaser for a valuable consideration; and, although the bequest under that clause, so far as it respects the money, notes, evidences of debt, &c., is not specific, it is nevertheless entitled to preference of payment over the other general legacies, which were mere bounties. Burridge v. Bradyl, 1 Peer. Will, 127; Blower v. Morret, 2 Vesey, 420. Much more is it entitled to preference of payment over those given to the residuary legatees.

But it is insisted, that the will contains an explicit declaration of the testator’s intention, that the debts shall be paid and the expenses defrayed, out of the money, notes, accounts, and evidences of debt owned by him at the time of his death.

In the construction of wills, the chief object is to ascertain the true intention of the testator. And it is always the safest mode of construction, to adhere to the words of the instrument, without considering either circumstances arising aliunde, or calculations that may be made as to the amount of the property, or the consequences which may flow from any particular construction. What then has the testator said ? In the first clause, after giving to Mrs. Odom certain slaves, his household and kitchen furniture, he says: “ I also give and bequeath to my wife Jane, all the money, notes, accounts, and evidences of debt of every description whatever, and choses in action, which shall remain after the payment of my just debts and the legacies hereinafter bequeathed.” If the clause had terminated with the wmrds “ choses in action,” no doubt could be entertained as to the intention of the testator. Standing in the attitude of a purchaser for a valuable consideration, Mrs. Odom would have been entitled to the whole of “the money, notes, &c.,” of which the testator should die possessed. And that bequest would have been entitled to preference of payment over not only the residuary legacies, but also over the general and pecuniary legacies given by the subsequent clauses of the will. But it is impossible to separate the words, “ which shall remain after the payment of my just debts, and the legacies hereinafter bequeathed,” from the preceding part of the clause. And, looking at the whole clause, it is impossible to doubt, that it was the testator’s intention to give to Mrs. Odom the residue of the money, notes, &c., which would remain after paying the debts and the particular general legacies given in the succeeding portions of the will; and, as no part of the money, or of the avails of the notes, evidences of debt, &c., could go into the residuum, it seems a very clear indication of the testator’s intention, that the debts and pecuniary legacies should be paid, at least in part, from that source.

But under the decree, the funeral charges, and the costs and expenses of administration, were also to be paid out of the money, notes, &e. This direction, in the decree, proceeds upon the supposition, that the funeral expenses and the costs of administration, were debts of the testator; or, as intimated in the decree itself, that the bequests to the residuary legatees were entitled to preference of payment over the legacy given to Mrs. Odom. In either point of view, the decree, in this respect, is clearly erroneous. The funeral expenses, and the costs and charges incident to the administration of the estate, upon no principle, can be regarded as the testator’s debts. It is very true, that the whole assets of the estate were bound for them; and that they were entitled to be first paid. But it is manifest, that that fact does not constitute the slightest foundation for the assumption, that the widow, who stood in the attitude of a purchaser for value, was obliged to contribute any portion of her bequest towards their payment, and that too before the residuary fund was exhausted, and the other general and pecuniary legacies were required to abate. As the will contains no direction that any particular part of the estate shall be applied to the payment of the funeral charges, and the costs and expenses of administration, it does not admit of doubt that they are to be defrayed out of the residuum, and unless it should prove insufficient, that none of the particular general legacies are obliged to abate.

It appears, from the record, that previous to the execution of the will, the testator had made a verbal sale, of a tract of land to one Mosely, and was bound to make titles for the same, upon payment of the purchase-money. That Mosely had paid part, leaving a considerable balance unpaid and due, when the testator died. The appellants, after having qualified as the executors of the will, offered to execute a deed for the land to Mosely, if he would pay the remainder of the purchase-money, which he refused, or failed to do. Whereupon they brought suit for the land, and recovered-possession of it. Subsequently, the executors sold the land as part of the testator’s real estate, which was directed to be sold by the fourteenth clause of the will. The land was sold for $960. Mosely sued the executors for the amount of money paid by him to the testator, as a part of the price of the land, and recovered judgment for $557.88, which was paid by the executors.

Upon these facts it was adjudged, that the proceeds of the sale of the land did not pass under the first clause of the will, as part of the bequest to Mrs. Odom; but went to the residuary legatees; and was ordered to be distributed accordingly.

The appellants insist, that the proceeds of the Mosely land, or at least the amount of the purchase-money, unpaid when the testator died, passed to the legatee, under the first clause; and assign, for erroi-, this direction in the decree.

The claim or debt against Mosely, without doubt, passed under the first clause of the will; therefore, if any money had been realized upon that claim, it would have followed the direction given to the money in possession, and the ehoses in action, by that clause. But no money, in-point of fact, was realized upon that claim; and we presume, for the reason, it was invalid. No effort was made, by suit, to collect it. The appellants abandoned the claim, but sued for, and recovered, the land. Under these circumstances, it is impossible to consider the claim as constituting a lien upon the land; and hence, that Mrs. Odom, or her representative, would have a right to payment out of the proceeds of the sale.

The acts of the appellants, have precluded them from insisting upon the validity of the sale, from the testator to Mosely, as well as the validity of the claim. If the claim was a valid one, and Mosely was solvent, they were in default. Under these circumstances, it would be going a great distance too far, to hold that the general bequest by the testator of his ehoses in action, was tantamount to a devise of the land in question, to be converted into money, for the benefit of the legatee.

And it is manifest, that it is only upon such an assumption, that the exception to the decree, in this respect, is entitled to consideration.

For the error before pointed out, we reverse the decree, and remand the cause for farther proceedings.