Merryman v. Long

Bartol, C. J.,

delivered the opinion of the Court.

Richard D. Long, deceased, by his last will and the codicils thereto annexed, bequeathed all his property after the payment of his debts to Oliver P. Merryman, in trust for the use of his wife for life, “ so that she be permitted and suffered to hold and enjoy the same property and estate, and the rents, issues, interest and income thereof, after payment of all ground rents, taxes, insurance, repairs and expenses upon said property, to take, receive and apply to her own use and benefit, &c., and after her death, in trust for the testator’s grand-children.”

Oliver P. Merryman was constituted executor of the will, qualified as such, and proceeded to administer the estate.

The property of the testator consisted chiefly of improved leasehold estate, appraised at $7335, from which income was received by the executor, during the first year of his administration, which was applied by him to the payment of the debts of the deceased, the funeral expenses, and other expenses of administration. He passed his first administration account showing the manner in which the income had been applied.

The appellee, the widow of the testator, filed her petition objecting to the account, and praying that the same be set aside, claiming that under the will she was entitled to receive the income derived from the property from the time of the testator’s death.

*546 ■ The Orphans’ Court decided in favor of the petitioner, and from its order the present appeal was taken. The-question upon the appeal is whether, under the will, the-income derived from the property during the first year,, after letters testamentary had been granted, is properly applicable to the payment of the debts of the testator, or-whether it was the duty of the executor, who was also-trustee, to account to the widow for the income, and to sell a part of the corpus of the estate for the purpose of paying the debts.

Apart from any question of the payment of debts and expenses of administration, the widow would no doubt be-entitled, under the will, to receive the income from the property from the time of the testator’s death. Angerstein vs. Martin, 1 Turner & Russell, (12 Eng. Ch. R.,) 232; Hewitt vs. Morris, Ibid, 241; L. Terriere vs. Bulmer, 2 Sim., 18; Sargent vs. Sargent, 103 Mass., 299 ; Evans vs. Iglehart, 6 G. & J., 193 . It appears however-from the administration account, that the whole income-collected by the executor during the first year was required for the payment of debts due by the testator, and the expenses of administration. In such case, it seems to us to-be equitable, and according to the due and proper course of administration,, that it should be so applied. Such income was unquestionably assets in the hands of the executor, in the same manner as would be hire of slaves, or interest on a bond received by him. Edelen vs. The State,. 4 G. & J., 277 .

The property being leasehold devolved on the executor,, and was held by him, subject to the rights of creditors.. The bequest to the use of the widow was of the residue,. after the payment of the debts.

It cannot be said that she had any vested estate in the-property until the administration had been completed, and the estate settled, for which the law allows twelve months,, if necessary, for that purpose. As between the legatee for *547 life and the creditors, it is very clear the latter were entitled to claim that their debts should be paid out of the assets in the hands of the executor, before any part thereof should be paid to her, and the income, which we have said constituted such assets, having been so applied by the executor, it seems to us the petitioner has no just cause of complaint. She had no right to insist that the corpus of the estate should be sold to pay the debts, when the executor had in hand money sufficient for that purpose, collected from the rents of the leasehold property. Nor does it appear to us that the course pursued by the executor inflicted any real injury upon the petitioner. By the application of the rents and income to the payment of the debts, the corpus of the estate was relieved from that burden ; and ‘as the petitioner is entitled to the income from the whole residue of the estate during her life, it was for her interest, as well as that of the parties entitled in remainder, that the corpus of the estate, from which her revenues are to be derived, should not be diminished by a sale of any part thereof, when a sale of the same was not necessary.

Being of opinion that the Orphans’ Court erred in its decision, the order from which the appeal was taken will be reversed, and the petition of the appellee will be dismissed.

Order reversed, and petition dismissed.

(Decided. 24tli July, ÍRÍS.)

A motion was made on behalf of the appellee for a re-argument of the foregoing case, or in the alternative for a modification of the order passed on the 24th of July, 1818.

The motion was disposed of by Bartol, C. J., G-rason, Miller, Alvey and Robinson, J., as follows:

*548 (Decided 27th March, 1879.)

By the Court.

A motion having been made by the appellee for a re-argument., or in the alternative for a modification of the order passed on the 24th day of July, 1878, we have again considered the case, and while we adhere to the opinion heretofore filed, we think the order ought to be modified.

It has been decided that under the will of.Richard Long, the executor was entitled to receive the rents of the property accruing during the first year after letters testamentary were granted, and to apply the same to the payment of the expenses of administration and the debts of the testator.

It appears that the first administration account was passed on the 24th day of September, 1877, fifteen months and ten days after the letters were granted. In it the executor is charged with rents and income received; but the account does not specifically show during what period the income accrued ; whether wholly within the twelve months or after that period elapsed.

Any part thereof accruing after the lapse of twelve months, the widow, the appellee, is entitled to receive, deducting therefrom the ground rents, repairs, &c., properly payable out of the same.

To afford the appellee an opportunity of producing proof in this respect, the petition ought to be retained, and the cause remanded ; and for that purpose the order heretofore passed will be modified in so far as it dismissed the petition of the appellee, and the cause will be remanded for further proceedings in conformity with this opinion.