Towle v. Swasey

Colt, J.

In the administration of testamentary assets, the general rule is, that when there is a deficiency after the payment of debts, expenses and specific legacies, the loss shall be borne entirely by those pecuniary legacies which are in their nature general. The testator, in the absence of clear proof to the contrary, must be deemed to have acted upon the belief that his *105 estate would be sufficient to answer the purposes to which he devotes it. Men do not ordinarily go through the formality of making wills and disposing of property which they do not own, or do not reasonably hope to become possessed of. If the chances of deficiency are anticipated and provided for by the terms of the will, then the directions of the testator will govern, and the loss must be borne by those on whom he places it. It is always a question of intention, and the relations of the several legatees, in respect to their legal claims upon the testator for support, should be taken into account in determining whether the general rule of abatement should be departed from. As between legacies which are in their nature mere bounties, the presumption of intended equality will prevail, unless there is unequivocal evidence to the contrary; and no priority will be allowed where the expressions of the will are ambiguous. Shepard v. Guernsey, 9 Paige, 357 . 2 Williams on Executors, 1233. Thwaites v. Foreman, 1 Collyer, 409.

1. The rule does not apply when the testamentary gift is founded on a valuable consideration, such as the relinquishment of the widow’s right of dower in her husband’s estate, or when the legacy is given in pursuance of a contract founded upon a good consideration. The widow’s title to dower is paramount j if she accepts the provisions of the will as a substitute for this legal right, she takes not strictly as a beneficiary, but as a purchaser for a valuable consideration, and without being subject to that abatement to which general legacies are subject. Pollard v. Pollard, 1 Allen, 490 . 2 Williams on Executors, 1229. 2 Red-field on Wills, 553, note. Under our statute, if the widow does not waive the provisions of the will within six months, she loses her right to dower, unless it plainly appears by the will that the testator intended such provisions in addition to her dower. If she foregoes her right to dower, therefore, she takes the legacy in the character of a purchaser, and is not treated as a beneficiary in marshalling the assets. St. 1861, o. 164. 1 Roper on Legacies, 415, 433. Clayton v. Akin, 38 Georgia, 320.

It is here claimed that the widow is not entitled to the benefit of this rule, because at the time of making the will she was not *106 married to the testator and was only an object of his bounty having no legal claim on his estate. The legacy in this case was accompanied with declarations in the will of the testator’s intention soon to marry the legatee ; in view of which event the will appears to have been executed. It was given in contemplation of all the legal rights to his property which the subsequent marriage gave, and is brought within the same rule as if the marriage had preceded the making of the will.

The widow is therefore entitled to the payment of her pecuniary legacy, being the income given her for life, in preference to all the pecuniary legacies in the will, excepting the small legacy to the son of money on deposit in the savings institution, for reasons to be hereafter stated. She is entitled to this income from the death of the testator. Pollock v. Learned, 102 Mass. 49 . Pollard v. Pollard, 1 Allen, 490 .

2. The mortgage debt secured upon the dwelling-house devised to the widow was properly paid by the administrator. The intention of the testator, that she should have a home free from incumbrance, is sufficiently apparent. The mortgage debt was the debt of the testator ; he makes a provision for her in money fully equivalent to its value as unincumbered property, in case it shall be sold ; and he declares his purpose to provide a comfortable home for her. Andrews v. Bishop, 5 Allen, 490 . Adams Eq. 261, note.

3. The gift to the son of whatever sum might be on deposit in the Provident Institution for Savings is a specific legacy. It is a gift of property specified and distinguished from all other property of the testator. If there had been no deposit at the time of the testator’s death, the son would have had no claim upon the estate ; and on the other hand, whatever cash was then in bank is not subject to assessment to make up any unexpected deficiency ir. the means to pay the other pecuniary legacies. By making it specific, the testator gives the strongest expression of his intention to exempt it from such reduction. It is set apart from the, other assets, and must be classed with the other legacies of personal property in the ninth clause of the will, and paid in full before anything is paid to the general legatees. 2 Redfield on Wills, 460. Armstrong's appeal, 63 Penn. State, 312.

*107 4. The rents of the real estate received by the administrator are not assets to be administered by him. In the absence of any agreement that they shall be so treated, they belong, with interest received upon them while in his hands, to the son and only heir. The lands were not devised, but descended to the son, subject to sale, if need be, for the payment of debts and legacies. Stearns v. Stearns, 1 Pick. 157 . Palmer v. Palmer, 13 Gray, 326 .

5. In addition to certain specific legacies, the testator gives to his son the income of a certain sum to be expended by his guardian for his support and education during his minority, and the principal sum when the son arrives at the age of twenty-one. It is contended that this entire provision in favor of the son is entitled to priority. This, as before stated, is a question of intention. The meritorious character of the legatee is not to be considered as affecting it, when there is nothing in the language of the will, or the character and declared purpose of the gift, to indicate an intention to prefer. The will is to be interpreted by what the testator has written, rather than by what he ought to have written. The circumstances of near relationship and dependence, though not of themselves sufficient, may however be regarded as constituting, in the language of the Lord Chancellor in Miller v. Huddlestone, 3 Macn. & Gord. 513, 528, “ an auxiliary reason for allowing such priority where the words used in the will favor the notion of a priority to a sufficient degree.” This is the doctrine of the leading case of Lewin v. Lewin, 2 Ves. Sen. 415. The executor was, in that case, directed to pay an annuity to the wife for the maintenance of a child, and Lord Hardwicke declared that it was a strong case to show that the annuity was intended to be preferred, especially in view of the fact that it was a provision for a child otherwise unprovided for. In Miller v. Huddlestone, 3 Macn. & Gord. 513, where the law is fully discussed, life annuities to a daughter, and to other relatives, were held not entitled to priority over other legacies, on the ground that the language of the will furnished no proof of such intention.

In the case at bar. the will makes special provision for the discharge of a natural obligation resting upon the father towards his ion. The annuity is given expressly for his education and support luring minority. It is in the form of a yearly allowance which *108 in amount is not more than sufficient for the purpose to which it is devoted, — a purpose which would be defeated if it is now liable to abatement. It terminates when he reaches twenty-one years of age; and the principal then becomes his. There is no other provision for his support and education, for it cannot be supposed that the testator contemplated that a son adopted by him before marriage would be supported by his widow out of the provision made for her. And we are of opinion that the intention is manifest, that this part of the gift to the son, namely, the income devoted to his support and education, should not be impaired in common with those general legacies which are mere bounties, by deficiency of assets, and is to be allowed from the death of the testator. Duncan v. Alt, 3 Penn. 382 . In re Barklay’s estate, 10 Penn. State, 387. 2 Redfield on Wills, 550, note. Merritt v. Richardson, 14 Allen, 239 .

The principal sum to be paid to the son when he reaches majority stands upon a different ground. There is nothing in the will which gives that part of the legacy any preference. It is distinguishable in this respect from the gift of the income, and must be classed with the general legacies, subject to abatement.

6. The legacy to Cassandra Stevens, sister of the testator, is not preferred. To hold as a purchaser, she must prove that it was agreed to be given for a valuable consideration. The case finds that she and her husband supported their mother, and that the testator declared that they would be compensated, as he had provided for Cassandra in his will; but no sum was named, and there is nothing to show that there was a contract to provide a legacy as compensation for services rendered or to be rendered. The declaration of the testator referred to what had been already done by him in making his will, and gave no ground for the inference that the bequest to his sister was anything more than a bounty to her. Rawlins v. Powel, 1 P. W. 298. Ridley v. Ridley, 12 Law Times, (IT. S.) 481.

7. As the controversy here arises out of the insufficiency of the estate to meet the disposition made by the testator, and the consequent difficulty in interpreting his will, the costs of all parties must be paid out of the estate. Bowditch v. Soltyk, 99 Mass, 136,141. Decree accordingly.