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Wm. IV., ch. 104, it was provided that all estates and interest in lands of which one might die possessed and which by will were not charged with or devised subject to his debts, should be assets for the payment of all debts of the decedent, specialty or simple, and that the heir or devisee should be liable to suits in equity by the creditors the same as the heir was formerly liable to such a suit by a specialty creditor. Specialty debts, however, were to be paid in full before simple contracts debts, but by the statute of 32 and 33 Vict., ch. 46, this distinction was abolished, but the rights of secured creditors were saved.

In the United States similar statutes have been enacted in practically all jurisdictions, and all property of the estate is liable for all the debts of the decedent, heirs and devisees being liable to the extent of the property going to them by descent or devise."

§ 784. Order in Which Property Is Resorted to for Payment of Debts.

The rule for the marshaling of assets for the payment of the debts of a decedent, in the absence of testamentary direction to the contrary, is as follows: First,

9 Rankin v. Big Rapids, 133 Fed. 670, 66 C. C. A. 568; Wilkinson v. Leland, 2 Pet. (U. S.) 627, 7 L. Ed. 542; Steele v. Steele, 64 Ala. 438, 38 Am. Rep. 15; Hall v. Brewer, 40 Ark. 433; Matter of Moulton, 48 Cal. 191; Lord v. Lord, 23 Conn. 327; Sutherland v. Harrison, 86 Ill. 363, 366; People v. Brooks, 123 Ill. 246, 14 N. E. 39; Whittern v. Krick, 31 Ind. App. 577, 68 N. E. 694; Rubel v. Bushnell, 91 Ky. 251, 15 S. W. 520; Constable v. Camp,

87 Md. 173, 39 Atl. 807; Grow v. Dobbins, 128 Mass. 271; Bartlett v. Ball, 142 Mo. 28, 43 S. W. 783; Dodson v. Taylor, 53 N. J. L. 200, 21 Atl. 293; Selover v. Coe, 63 N. Y. 438; Read v. Patterson, 134 N. Y. 128, 31 N. E. 445; Murchison's Exrs. v. Whitted, 87 N. C. 465; Shannon v. Newton, 132 Pa. St. 375, 19 Atl. 138; Williams v. Weeks, 70 S. C. 1, 48 S. E. 619; Sommerville v. Sommerville, 26 W. Va. 484.

the personal estate, and of this (a) the personal estate not disposed of by will, (b) the personal estate generally bequeathed, and (c) the personal estate specifically bequeathed; and, second, the real estate, and of this (a) property which descended to the heirs at law, (b) that which is generally devised, and (c) that which is the subject of a special devise.10 This is the rule laid down by statute in some jurisdictions,11 and was also the rule of the common law.12

§785. Personal Property of Estate Is Primarily Liable for Debts and Legacies.

All legatees or devisees under the will of a decedent take subject to his debts,13 unless the property be exempt by law from execution. The general rule now is that the real property, by virtue of statute, is liable for the debts of the decedent the same as is personalty. In most jurisdictions all unsecured claims against an estate are of equal degree and are equally a charge on all the assets, legal or equitable. However, the personalty is still both. the natural and primary fund for the payment of debts,

10 Duck v. McGrath, 160 App. Div. 482, 145 N. Y. Supp. 1033.

11 N. Y. Code Civ. Pro., §§ 27522757.

12 In re Woodworth's Estate, 31 Cal. 595.

It is said that this order for resorting to property for the payment of debts is not to be disturbed by the fact that lands are devised subject to a mortgage or encumbrance thereon, and that it requires express words or a clearly manifest intention to be gathered from the entire will to

disturb it. In re Woodworth's Estate, 31 Cal. 595. But see, post, §§ 794-797.

13 Maitlen v. Maitlen, 44 Ind. App. 559, 89 N. E. 966; In re Metcalf's Estate, 143 Iowa 310, 120 N. W. 104; Ison v. Halcomb, 136 Ky. 523, 124 S. W. 813; Bull v. Hepworth, 159 Mich. 662, 124 N. W. 569; Oliver v. Smith, 94 Miss. 879, 49 So. 1; O'Donnell v. McCann, 77 N. J. Eq. 188, 75 Atl. 999; American National Bank v. First National Bank, 52 Tex. Civ. 519, 114 S. W. 176.

and all personalty is included which the will does not exempt or otherwise dispose of. The rule is the same with legacies as with debts; if the testator does not specify out of what fund they shall be paid, the presumption is that they shall be satisfied out of the personal estate. The testator may, of course, charge the realty with the payment of debts and legacies, either by express direction or by necessary implication.14 The surrounding circumstances may be considered in arriving at the testator's intention;15 but the burden of proving that the realty is so charged is upon the one asserting the contention.16 But the rule is that the burden is primarily on the personalty, and this can be altered only by the testator. The mere charging of the realty with the payment of debts does not exonerate the personalty. The testator must not only charge the realty, but must show his intention that the personalty should not be so applied in order that it be exempted, and such intention must be expressed in the will or clearly appear by necessary implication.1

14 In re Rawlings, 81 Iowa 701, 47 N. W. 992; Forbes v. Harrington, 171 Mass. 386, 50 N. E. 641; Fecht v. Henze, 162 Mich. 52, 127 N. W. 26; Harris v. Fly, 7 Paige Ch. (N. Y.) 421; McGoldrick V. Bodkin, 140 App. Div. 196, 125 N. Y. Supp. 101; Farmers Loan & Trust Co. v. Kip, 192 N. Y. 266, 85 N. E. 59; Hope v. Wilkinson, 14 Lea (Tenn.) 21, 52 Am. Rep. 149.

Provision of will directing that any balance due on certain property should be paid out of the proceeds thereof, held a charge on same for part of purchase price

unpaid. Hessig v. Hessig's Guardian, 131 Ky. 514, 115 S. W. 748.

15 Smith v. Bush, 59 Misc. Rep. 648, 111 N. Y. Supp. 428; McGoldrick v. Bodkin, 140 App. Div. 196, 125 N. Y. Supp. 101; Brennan v. Brennan, 127 N. Y. Supp. 420.

Where testator knew his personal estate was insufficient to satisfy the legacies given, see § 788.

16 McGoldrick v. Bodkin, 140 App. Div. 196, 125 N. Y. Supp. 101.

17 Grose v. McMullens, 2 Del. Ch. 227; Morris v. Higbie, (N. J. Eq.) 27 Atl. 438; Sweeney v. Warren, 127 N. Y. 426, 24 Am. St. Rep.

§786. Direction in Will That All Debts and Legacies Be Paid. A direction by the testator that his debts shall be paid, as a general rule charges all his real as well as his personal estate therewith.18

468, 28 N. E. 413; Riegelman's Estate, 174 Pa. St. 476, 34 Atl. 120; New's Exr. v. Bass, 92 Va. 383, 23 S. E. 747.

As to abatement of legacies, see §§ 690-707.

As to ademption of legacies and devises, see §§ 708-748.

18 Shallcross v. Finden, 3 Ves.

Jun. 738; Clifford v. Lewis, 6 Madd. 33. But see Smith v. Soper, 32 Hun (N. Y.) 46.

"In a few cases a general direction to pay debts, followed by a specific appropriation of particular estates for the payment, has been held not to create a charge on the real estate not specifically appropriated; but the doctrine of the cases is doubtful."-Hawkins on Wills, 284, citing Thomas v. Britnell, 2 Ves. Sen. 313; Palmer v. Graves, 1 Keen 545.

Where the words of the will were, "after payment of all my just debts, one-half of my entire personal estate," etc., they were held to create a special charge upon the personalty.-Maybury v. Grady, 67 Ala. 147.

Where the will gave thirty acres of land to a son and the remaining ninety acres to his two daughters, but providing that if any property remained after settling "above claims," it should go to the children equally, it was held that

intent was shown to charge the land with the payment of debts.— Cox v. Johnson, 242 Ill. 159, 89 N. E. 697.

Provision of will that the amount of a legacy to the daughter should remain in the "home place," with interest annually, should she marry, was held to make a charge on the land, although the will contained a further provision for selling the property and paying the legacy should the daughter become a widow.-Fauber v. Keim, 85 Neb. 217, 122 N. W. 849.

In Brill v. Wright, 112 N. Y. 129, 8 Am. St. Rep. 717, 19 N. E. 628, the will, after the introductory clause, read: "First, after all my debts are paid and discharged, I give and bequeath to J. S. B. the sum of two thousand dollars, to be paid him within three months after my decease. Secondly, I give and bequeath all the rest and residue of all my real and personal estate, of whatsoever name or nature to J. C. and M. C." A third party was appointed executor. The debts were nominal and the personal property was more than sufficient to pay the debts and legacy. The direction to pay debts was on the printed form used for the will. The court held that the real estate was not charged, the

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"After payment of debts," means that until the testator's debts be paid he gives nothing, that everything he has shall be subject to his debts. "To give these words any effect they must charge the real estate. "19

Where a testator directs that his debts and legacies be first paid and then devises his real estate, or where he devises his real estate, or the remainder of his estate, real and personal, after the payment of debts and legacies, it has been held that the real estate was charged, not only with the debts but also with the legacies.20

Where a legacy is charged upon certain real estate and the testator disposes of a portion thereof during his life, the legacy will remain a charge on the remainder undisposed of by the testator at his death.21 But although a charge may be made for the payment of debts, it may be thereafter released. Thus, where a residuary legatee was charged in the will with the payment of debts, and by a codicil a piece of land was left him to sell and to devote the proceeds, first, to the payment of the debts, and to pay whatever might remain to the testator's heirs, it was deemed a release of the charge upon him for the payment of debts in his capacity of residuary legatee.22

personalty being sufficient, and the direction to pay debts formal and conventional only. To the same effect, see In re Rochester, 110 N. Y. 119, 17 N. E. 678.

19 Shallcross v. Finden, 3 Ves. Jun. 738.

20 Bench v. Biles, 4 Madd. 187; Brudenell v. Boughton, 2 Atk. 268; Williams v. Chitty, 3 Ves. Jun.

545; Shallcross v. Finden, 3 Ves.

Jun. 738; Tomkins v. Tomkins, Prec. Ch. 397; Hassel v. Hassel, 2 Dick. 527; Kentish v. Kentish, 3 Bro. C. C. 257; Newman v. Johnson, 1 Vern. 45; Trott v. Vernon, 2 Vern. 708; Harris v. Ingledew, 3 P. Wms. 91.

21 Watson v. McLench, 57 Ore. 446, 110 Pac. 482, 112 Pac. 416.

22 In re Hulton's Estate, 104 Pa. St. 359.

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