
    George A. Hutchins, Plaintiff, v. Wallace P. Hutchins et al., Defendants. Eunice Hurlburt, Plaintiff, v. Wallace P. Hutchins et al., Defendants.
    (Supreme Court, Franklin Trial Term,
    December, 1896.)
    1. Legacies — Charge on real estate.
    By testator’s will he devised the home farm to his wife and the defendant, one of his sons, jointly and equally during the lifetime of the wife, and at her decease to defendant, and in case of his death, to his heirs, said defendant to pay certain sums “ to each of the other heirs ” within five years after the death of testator and his wife, without interest. Held, that the legacies thus given to the other heirs were a charge upon the real estate so devised and that it was the primary fund for the payment of the same.
    2. Same — ¡Estoppel.
    Where the devisee, who was also the executor, distributed the entire personal estate and defeated an action for such legacies on the ground that he was not liable as executor therefor, he is estopped from denying his personal liability and claiming that the legacies were payable from the personal estate,
    3. Same — Priority over mortgage.
    The charge of such legacies upon the real estate is superior to the lien of a mortgage given by the devisee after probate of the will, and which contains in the descriptive clause a statement that the mortgagor is to pay these legacies. - _
    Actions to have legacies given to the .plaintiffs, by the will of their father, adjudged to be a first lien upon the real estate of which he died seized; and that such lien be enforced by' a sale of such real estate. The actions were, tried together.
    Albert Hobbs, for George A. Hutchins.
    W. J. Mears, for Eunice Hurlburt.
    A. H. Sawyer, for Agricultural Insurance Company.
    John P. Kellas, for Wallace P. Hutchins.
   McLaughlin, J.

In December, 1879, Cyrell Hutchins died, leaving a will, which was admitted to probate and letters testamentary issued to the executor therein named, the defendant Wallace P. Hutchins, on the 26th day of January, 1880. That portion of the will which is material to the questions involved is as follows:

“ First. After all my lawful debts are paid and discharged, I give and bequeath:

“1. I give and bequeath to my beloved wife Caroline and to my son Wallace P. Hutchins, jointly and equally, the whole of my real estate included in the home farm, containing about 250 acres land, to have and to hold the same during the lifetime of my said wife; at her decease then the same to go to Wallace P. Hutchins, and in case of his decease, then to his heirs; said Wallace P. Hutchins to pay to each of the other heirs herein named the following sums: To George L. Hutchins, eight hundred dollars; to Eunice Hurlburt and Sophronia S. Langdon, to each the sum of eight hundred dollars; to .be paid within five years after the decease of myself and wife, without interest.”

On the 10th of May, 1888, the defendant Wallace P. Hutchins, executed and delivered to the defendant Agricultural Insurance Company, a mortgage upon the real estate devised to him which, among other things, provides: “Also all that other piece or parcel of land in Constable and Westville, about 250 acres of land, conveyed by Cyrell Hutchins, Sr., to Wallace P. Hutchins and Caroline Hutchins, wife of C. Hutchms, jointly, the home farm. After the death of said Caroline, her interest in said farm goes to Wallace P. Hutchins. Five years after the death of said Cyrell Hutchins, Sr., and wife, said" Wallace P. Hutchins is to pay George L.. Hutchins, Eunice Hurlburt and Sophronia Langdon eight hundred dollars each, without interest.” About one year after the execu-' tion and delivery of the mortgage, Caroline Hutchins, the widow, died.

. Cyrell Hutchins left him surviving his widow, said Caroline, and the following children: The defendant Wallace P. Hutchins; the plaintiff; Eunice Hurlburt; George L. Hutchins, Sophronia Langdon and Cyrell Hutchins.' He left, in addition to the real estate devised, $1,561.19 in personal property, which the executor voluntarily distributed between the widow and the five children.

The $800 provided in the will to be paid to George L. Hutchins and Eunice Hurlburt not having been paid, the plaintiffs bring these actions, George A. having taken the interest of George L._ by assignment, to recover a judgment establishing the amount thereof, with interest, to be a first lien upon the land mentioned in the will and decreeing that the same be sold.

The actions are resisted by the defendants, Wallace P. Hutchins and the Agricultural Insurance Company, mainly upon the ground that the personal estate of the deceased is the primary fund for the payment of these legacies, and that the,payment of the same is by the terms of the will charged upon Wallace P. in aid and not in exoneration of the primary fund.

The question, therefore, whether these legacies are a charge upon the real estate and it or the personal estate is the primary fund out of which they are to be paid, depends upon the intention of the testator expressed in and to be gathered from the will itself. Certain facts have been held by different judges to be significant and sometimes controlling in determining a testator’s intent to charge real estate with the payment of legacies. Thus, it has been held where real estate is devised, after the payment of legacies, that this is sufficient to show such intent. Beach on Modern Equity Jurisprudence, par. 1057. Also, where the devisee of the real estate is appointed the executor and is directed to pay the legacies, this has been held sufficient to show an intention that the land devised should be charged with the payment of the legacies. Brown v. Knapp, 79 N. Y. 136. So, too, where the devisee of real estate is directed to pay the legacies, and especially if such direction is contained in the same sentence as the devise. Merritt v. Bucknam, 78 Me. 504; Harris v. Fly, 7 Paige, 421; Merrill v. Rickford, 85 Me. 118; Bank v. Donaldson, 6 Penn. St. 179. It has also been held that such intention is evidenced by the words: “ I direct that the remainder of my whole estate shall be divided among my heirs.” Davidson v. Conn, 125 Ind. 497. Also, that it is not necessary that express words be used to exempt the personal estate from and to charge the payment of legacies upon the real estate; that “it is sufficient if there appears upon the will an evident demonstration, a plain intention, or a necessary implication.” Sweeney v. Warren, 127 N. Y. 437. But what might be considered sufficient to indicate an intention in one case would be entirely insufficient in another. Eor this reason no fixed rule has been or can be established which is applicable to or satisfactory in every case. Each will presented for judicial consideration has its peculiar facts and its construction must be determined by the intention of the testator as ascertained from those facts, and it matters not whether that intention be clearly expressed in the will or whether it be fairly and necessarily implied from it.

What, then, was the intention of the testator in reference to the payment of the legacies in question? Did- he intend that the same should be paid out of his personal estate and that the direction to Wallace P. was in aid and not in exoneration of it? Or, did he'intend that the real estate devised to Wallace P. should be the primary fund and the only fund out of which they were to be paid beyond the individual liability'of Wallace P. ? It seems to. me that there can be but one answer to these questions. The language used indicates an intention that cannot be misunderstood or misconstrued. He says: “ I give and bequeath to my beloved wife, Caroline, and to my son, Wallace P. Hutchins, the whole of my real estate included in the home farm, containing 250 acres of land * * * during the life of my said wife; at her decease the same to go to Wallace P. Hutchins, * * * said Wallace P. Hutchins to pay to each of the other heirs herein named tbe following sums,. * * * to be paid within five years after the decease of myself and wife, without interest.” The use of the word “ heirs ” is significant. It indicates that the testator understood that, except for the will he was making, the heirs named by him would by law inherit this real estate- equally with the son Wallace P., and that he desired to compensate them in some degree for taking from .them that which the law would otherwise give — such compensation to be paid by Wallace- P. as a condition of the devise. This intent is also manifest in the first clause of the will. He says: “After my lawful debts are paid and discharged.” He does not direct Wallace P. to pay his debts, neither does he select any fund out of which they shall be paid. He did this because he intended that his debts should be paid out of his personal estate, but as to the legacies he directs that Wallace P. shall pay them, and, in the manner which he directed such payment to be made, intended that the same should be paid out of the real estate in case of the failure of Wallace P. to make such payment. His intention is also quite manifest by the time when he directs Wallace P. to pay. He is not to pay until five years after the death of himself and wife, and then such payment is to be made without interest. If these legácies were to he paid out of the personal estate, why did the testator postpone the time of payment for that period? Again, if he did not intend that the land devised should be the primary fund for the payment of these legacies, why did he not dispose of his personal estate? For the reason, as it seems to me, that by not disposing of that and by devising all of his real estate to Wallace P. and directing him to pay, his intention would be so manifest that it could not be misunderstood. The farm could not well be divided among all his children, but it could all be devised to one and that one required to pay to the others an amount which to the testator seemed just, and this is just what the testator, in my judgment, sought to do. And, when Wallace P. accepted the conditions of the will by entering into possession of the land devised, he then became obligated to pay the legacies in question, and he can be compelled to do so by the legatees, either in an action at law or by a suit in equity to obtain a lien upon the land itself. Thus, it was held in Brown v. Knapp, 79 N. Y. 136, where a legacy was given and directed to be paid by an executor who was a devisee of real estate, that such estate could be charged with the payment of the legacy; and the devisee upon accepting the devise became personally liable to pay, and this although the land devised to him proved to be less in value than the legacy. It was also held that the payment of such legacy could be enforced by a suit in equity against the real estate, or by an action directly against the devisee upon the promise to pay implied by the acceptance. See also Gridley v. Gridley, 24 N. Y. 130; Birdsall v. Hewlett, 1 Paige, 32.

In Harris v. Fly, 7 Paige, 421, the chancellor delivering the opinion said: “If the testator, therefore, gives a legacy without specifying who shall pay it, or out of what fund it shall be paid, the legal presumption is that he intended it should be paid out of his personal estate only; and, if that is not sufficient, the legacy fails. So, if he directs his executors to pay a legacy without giving to them any other fund than the personal estate out of which they can pay it. But where the real estate is devised to the person who by the will is directed to pay the legacy, it has frequently been decided that such legacy is an equitable charge upon the real estate so devised, although the devisee is also the executor or is the residuary legatee of the personal estate, unless there is something in the will itself to indicate a contrary intention on the part of the testator.” See Loder v. Hatfield, 71 N. Y. 92; Lord v. Lord, 22 Conn. 802. It seems clear that the legacies in question are a charge upon the real estate devised and that it is the primary fund for the payment of the same.

In reaching the foregoing conclusión the cases cited by the-defendants have not been overlooked. The strongest case, perhaps, is that of Hoes v. Van Hoesen, 1 N. Y. 120, but that, it seems to me, is clearly distinguishable from -this. There the testator gave to his two sons, John and George certain real estate, and directed John and George to. pay certain legacies — some of them “to be paid in one year after his decease.” The testator •then"gave to his -wife- during her lifetime or widowhood “the use, and income of all” his estate.- The son George, at the time of the death of the testator was -but sixteen years of age. He had no property or any means of paying his share of the legacies which-he was directed to pay except,the property devised and bequeathed: to him by his father, and this was -subject to the estate of his mother during .her life; and,, to have, held under such á will that it was the intent of the testator that- the legacies were to be paid personally by John and George^, would have been- to impute- to the father a dishonest intention,.. because, George, being under- age,, the law presumes that he knew George had nothing with which, to pay.

I think, however, the defendant Wallace P. is estopped from denying his personal, liability. It appears -from an opinion written by Mr. Justice Kellogg, and it was conceded upon the argument before me, that these plaintiffs jointly brought an action against the defendant Wallace P., as, executor, and that he interposed a demurrer to the complaint, and, in sustaining the demurrer,, the learned justice said: “It will be seen by the provisions- of this will that such legacies are not general legacies "to be paid out: of the estate of the -testator.- No-portion of the personal property of the testator could be vised in the payment of these sums. or. any part. The land is made the primary fund, and the only fund, beyond the individual liability- of Wallace P, Hutchins, provided he accepted the devise. ' •* ' * * No duty is imposed upon the executor respecting such' payment, and it necessarily follows- that the executor of the "will of Cyrell Hutchins, deceased, is not a proper -party defendant,in any action to enforce that payment.” Having thus succeeded in defeating that action upon the ground that he was not liable, as executor, he- cannot now be heard to say that he is not liable individually because- he is liable as executor. I think for another reason he is estopped from claiming that these legacies are payable out of the personal estate of the deceased. The personal- estate he distributed on the assumption that the testator died intestate in reference to that. Having thus voluntarily made such distribution, he cannot now be heard to say that these legacies are payable out of a fund which by reason of his own act does not exist. And it is to be noted in this connection that in the mortgage which he gave to the insurance company he says that he is to pay these legacies; not as executor but personally. The language is: “Five years after the death of Cyrell Hutchins, Sr., and wife, said Wallace P. Hutchins is to pay George L. Hutchins, Eunice Hurlburt and Sophronia Langdon eight hundred dollars each, without interest.”

The Agricultural Insurance Qompany took the mortgage in question after the will of Cyrell Hutchins had been admitted to probate, and, therefore, it had presumptive knowledge of its contents. It had constructive knowledge, at least, that the only title which the mortgagor had was that devised through the will; that whatever lien it acquired would be subject to the lien of the legatees. It follows, therefore, that the charge of these legacies upon the real estate is superior to the lien of the mortgage and should be enforced in preference to it, unless some reason exists which enables the insurance company to insist, for its protection, that payment shall be first sought from Wallace P. Hutchins. It cannot, however, insist upon tbat, for the reason that its lien is by the terms of the mortgage itself made subject to the lien of these legatees. In the description of the premises, and as a part of it, is a statement that the mortgagor is to pay the- amount here claimed. Under the facts of this case such statement, irrespective of the testator’s intent, creates a lien upon the land superior to the mortgage.

The plaintiffs are entitled to judgment, with costs against the defendant Wallace P. Hutchins, in each action to the time of trial and. one trial fee.

Judgment accordingly.  