§787. The Same Subject: Construed, If Possible, as Referring to Personalty. If a direction for the payment of debts can be fairly construed to refer to personalty, it will not be deemed to have reference to realty.23 A bequest of the interest on a hundred dollars, "the principal to remain secured in real estate," does not constitute such a charge upon the testator's realty as will save the bequest from abatement upon a deficiency of the personal estate.24 Where the income of the real and personal estate is given to the widow for life, although a power be given to the executors to sell any part of the realty at their discretion, taxes on the real estate are to be paid out of the personalty, and no part of the real estate can be sold therefor.25 A provision that a person shall have a support "out of" land constitutes a charge upon the income only, and not upon the land itself.26 But if the body of the realty be once clearly charged with the payment of legacies, subsequent words will not be lightly construed to limit the charge to the income merely.27 23 Adams v. Brackett, 5 Metc. (46 Mass.) 280. Where the will directs that the amount of a certain debt be deducted from a specific legacy, the direction must be followed, although the debt was paid during the testator's lifetime, the will manifesting such an intention.— Lewis v. Lewis, 150 Ill. App. 354. 24 Rambo v. Rumer, 4 Del. Ch. 9. 25 Cadmus v. Combes, 37 N. J. Eq. 264. 26 Gray v. West, 93 N. C. 442, 53 Am. Rep. 462; Misenheimer v. Sifford, 94 N. C. 592. It has been held in Pennsylvania that a direction, coupled with a devise of a farm, to pay onethird of the grain raised thereon to the testator's widow during her life, constitutes a charge upon the farm itself.-In re Springer's Appeal, 111 Pa. St. 228, 2 Atl. 855. 27 Phillips v. Gutteridge, 3 DeG., J. & S. 332; Pearson v. Helliwell, L. R. 18 Eq. 411; In re Hedge's Trusts, L. R. 18 Eq. 419. § 788. The Same Subject: Doubtful Expressions. Doubtful expressions are not permitted to exempt the testator's personal property from the payment of debts and legacies. In order to charge them upon the real estate, it must clearly appear from the language of the will that the testator so intended.28 Nevertheless, it is sufficient if such a purpose be gathered from the words of the will by necessary inference; it is not required that it be stated in express terms.29 Where a legacy directed to be paid from the income of personalty was afterward alluded to in a provision that the legacies should be paid from the proceeds of land, it constituted a charge upon the land as well.30 Again, where a testator directed the payment of his debts as soon as possible from any money he might die possessed of, and then specifically bequeathed his personalty, it was decided that the debts were payable from the undevised realty.31 But under a distinct provision for a division of a fund, and for a certain charge upon it, the land is in no way affected or charged.3 28 Knightley v. Knightley, 2 Ves. Jun. 328; Davis v. Gardiner, 2 P. Wms. 187; Canfield v. Bostwick, 21 Conn. 550; Cornish v. Willson, 6 Gill (Md.) 299; Seaver v. Lewis, 14 Mass. 83; Tracy v. Tracy, 15 Barb. (N. Y.) 503; Kirkpatrick v. Rogers, 7 Ired. Eq. (42 N. C.) 44; In re Wright's Appeal, 12 Pa. St. 256. · 29 Ion v. Ashton, 8 Week. R. 573; s. c., 6 Jur. N. S. 879; Portarlington v. Damer, 10 Jur. N. S. 54; Bugbee v. Sargent, 27 Me. 338. "The cases are very numerous where the terms used have been held sufficient to charge the payment of legacies upon real estate; but it would scarcely be useful to occupy time and space in repeating them here, as they would not govern other cases not entirely similar."-2 Redfield, Wills (2d ed.), p. 208. 30 Tichenor v. Tichenor, 41 N. J. Eq. 39, 2 Atl. 778. 31 Douglass v. Baber, 15 Lea (83 Tenn.) 651. 32 French v. Mastin, 19 Mo. App. 614. §789. Direction in Will That Executor Pay All Debts and Legacies. An exception obtains where the direction that the debts shall be paid is coupled with a direction that they are to be paid by the executors, in which case it is assumed that the intention was that they should be paid out of the property which passes to the executors.33 So, where the devisee of the real estate is appointed executor and is expressly directed to pay the debts and legacies, a charge upon the realty will be created.34 But a direction that they be paid by his executor charges only the real estate, if any, devised to him.35 It was at one time doubted whether a direction that debts be paid by the executors would charge more than the personal estate, but it is now established that such a direction prima facie constitutes a charge upon all the property devised to them jointly by the will, whether real or personal;36 and whether the realty be given them as trustees or beneficially.37 In a modern English case it was held that a direction to executors to pay debts, together with a devise which conferred upon them the whole legal fee as joint tenants, although they took unequal beneficial interests thereunder, operated to charge the real estate with the debts.38 But if there are several ex 33 Cook v. Dawson, 29 Beav. 126. 34 Dover v. Gregory, 10 Sim. 393; Alcock v. Sparhawk, 2 Vern. 228; Doe v. Pratt, 6 Ad. & E. 180; Henvell v. Whitaker, 3 Russ. 343. 35 Keeling v. Brown, 5 Ves. Jun. 359; Powell v. Robins, 7 Ves. Jun. 209; Gaw v. Huffman, 12 Gratt. (Va.) 628, 633. Henvell v. Whitaker, 3 Russ. 343; 37 Dover v. Gregory, 10 Sim. 393; Dormay v. Borradaile, 10 Beav. 263; Hartland v. Murrell, 27 Beav. 204; Robson v. Jardine, 22 Grant Ch. (U. C.) 420. 38 In re Tanqueray, 20 Ch. Div. 36 Harris v. Watkins, Kay 438; 465. ecutors, a direction to them to pay debts does not charge lands devised to one of them only.39 It has been said that a direction to executors to pay legacies would constitute a charge upon the lands devised to them, either beneficially or as trustees, as in the case of a direction to pay debts.40 Mr. Hawkins doubts the soundness of this extension of the rule.41 There is a case, however, in which the larger part of the realty was devised absolutely to the testator's widow, the sole executrix, and a small part to her for life only with remainder over, where it was held that the whole interest taken by her under the will, including the life estate, was subject to the charge.42 But it has been held that the mere fact of devising the real estate to the executor, either wholly or in part, without an express direction to him to pay legacies, and without any condition that he shall pay them, is not sufficient to charge them upon the realty in his hands;48 although in such cases, where the personalty is manifestly insufficient to pay the debts and legacies, and the real estate is given to the executor, very slight circumstances will be laid hold of by the courts to raise an implied or equitable charge upon the realty.44 Where a will directs the payment by the executors of testamentary charges and expenses, charges incurred for legal services rendered the executors in proceedings for the 39 Warren v. Davies, 2 Myl. & K. 49. See, also, Wasse v. Heslington, 3 Myl. & K. 495; Symons v. James, 2 You. & C. V. C. 301, where the devise was to trustees for the use of two of the executors. 40 Alcock v. Sparhawk, 2 Vern. 228; Preston v. Preston, 2 Jur. N. S. 1040; Thayer v. Finnegan, 134 Mass. 62, 45 Am. Rep. 285 41 Hawkins, Wills, 286, citing Parker v. Fearnley, 2 Sim. & St. 592. But see Brown v. Knapp, 79 N. Y. 136 and cases cited. 42 Harris v. Watkins, Kay 438. 43 Stevens v. Gregg, 10 Gill & J. (Md.) 143. 44 Luckett v. White, 10 Gill & J. (Md.) 480; Harris v. Fly, 7 Paige Ch. (N. Y.) 421. revocation of probate are a lien upon the corpus of the estate.15 § 790. Presumption Where Testator Knows the Personalty Is Inadequate. 46 An intention to charge legacies upon the land may be under certain circumstances presumed from the fact that the personal estate was known by the testator to be inadequate for the payment of the legacies. Thus, where a testator made his will one day before his death, bequeathing two legacies which his personal estate was not sufficient to pay, it was deemed to indicate an intention that they should be charged upon the realty. So where an executrix appointed one son executor and gave him all her property, he to pay her debts and the college expenses of another son for whom she made no provision, and the personal estate amounted to no more than twenty dollars, but the real estate to some fifteen hundred, the court decided that the provision in favor of the second son should constitute a charge upon the realty. And 45 Wolfe v. Wolfe, 2 Demarest (N. Y.) 305. 46 McCorn v. McCorn, 100 N. Y. 511, 3 N. E. 580. See, also, Heroy v. German Catholic Church, 62 Misc. Rep. 435, 116 N. Y. Supp. 39; McGoldrick v. Bodkin, 140 App. Div. 196, 125 N. Y. Supp. 101; Brennan v. Brennan, 127 N. Y. Supp. 420. Legacies will not abate if the provisions of the will indicate that the testator intended that they should be paid, although he knew that the personalty would be insufficient for such purpose.-Fecht V. Henze, 162 Mich. 52, 127 Where the testatrix did not know that her personal estate was insufficient to pay all legacies, but on the contrary had grounds for the belief that it was sufficient, it was said there was no intent to make a charge against the rule.Farmers' Loan & Trust Co. v. Osborn, 70 Misc. Rep. 428, 128 N. Y. Supp. 915. 47 Thayer v. Finnegan, 134 Mass. 62, 45 Am. Rep. 285. Compare: Taylor v. Tolen, 38 N. J. Eq. 91. |