Opinion
07-29-1891
TURNER v. GIBB et al.
Joseph Thompson, for complainant. A. Stephany, for defendant Alexander Gibb.
(Syllabus by the Court.)
On bill and answer.
Joseph Thompson, for complainant. A. Stephany, for defendant Alexander Gibb.
GREEN, V. C. Jeanette Carr, late of Atlantic City, in this state, died in February, 1887, leaving a last will and testament dated November 13, A. D. 1882, substantially as follows: "Item first. I order and direct that all my just debts and funeral expenses be fully paid and satisfied, as soon as conveniently may be after my decease, out of the personal property and real estate mentioned in the second item of this, my will. Item second. I give, devise, and bequeath unto my son Robert B. Gibb my house and lot on the south-west corner of Race and Utah streets, being No. 714 Race street, in the city of Philadelphia and state of Pennsylvania, together with all the furniture, fixtures, and stock of liquors therein, to him and his heirs forever, subject and charged, however, with the payment of my just debts and funeral expenses." Item third is a devise to her granddaughter, Hannah Carr Gibb, daughter of her son Alexander Gibb, of two tracts of land situate in Egg Harbor township, Atlantic county, in this state, describing them, so that they can be readily identified. The fourth and fifth items contain general pecuniary legacies to her grandchildren by name, amounting in the aggregate to $2,020. Item sixth is as follows: "I give, devise, and bequeath unto my son Alexander Gibb all the rest and residue of my estate, real, personal, and mixed, whatsoever and wheresoever situated, during the term of his natural life; and after his death I give, devise, and bequeath the same to my granddaughter, Hannah Carr Gibb, daughter of my son Alexander Gibb, to her and her heirs and assigns, forever." The will was admitted to probate March 14, 1887, by the surrogate of the county of Atlantic, in this state, and letters testamentary were issuedthereon to Richard H. Turner and Harry L. Slape, the executors named therein, who took upon themselves the execution of the said will. Harry L. Slape, one of the executors, died in May, 1887, leaving the complainant in this suit the surviving executor. The personal estate, as it appears by the inventory filed by the executors, amounts to the sum of $1,057.47. The testatrix, in addition to the real estate devised by the second and third clauses of her will, died seised of four other tracts of land and real estate in Atlantic county, which are described in the bill, and which were not in any wise devised by the testatrix except by the sixth item of her will. These tracts were conveyed to testatrix as follows: (11 By Hannah Beebe and husband, October 26, 1881; (2) by George Lewis and wife, October 18, 1882; (3) by James W. Moore and wife, January 25, 1884; and (4) by Ezra Johnson and wife, January 17, 1885, as appears by the admission of counsel on file. This bill is filed by the surviving executor, seeking to charge the payment of the general pecuniary legacies given to the grandchildren upon the real estate devised by the residuary clause, in consequence of the deficiency of personal estate to meet the same.
This will was made in 1882, and the testatrix died in 1887. The parties have not availed themselves of the privilege of showing by parol evidence the nature, situation, and amounts of testatrix' property at the time of making the will, as they were entitled to do, (Leigh v. Savidge, 14 N. J. Eq. 124; Johnson v. Poulson, 32 N. J. Eq. 390;) but both sides have contented themselves with the result as fixed by the inventory filed by the executors. The complainant claims that the payment of these legacies is charged upon the real estate not devised other than by the sixth item, by invoking the rule stated in Hawkins on Wills, page 294: "If legacies are given generally, and the residue of the real and personal estate is afterwards given in one mass, legacies are a charge on the residuary real as well as the personal estate." Any question as to the rule which may have existed in this state must be considered as set at rest by the decision of the court of appeals in the case of Corwine v. Corwine, 24 N. J. Eq. 579, as explained in Johnson v. Poulson, 32 N. J. Eq. 390, the result of which maybe thus stated: That when pecuniary legacies are first given, and afterwards the residue of the estate, real and personal, if the personal estate is insufficient therefor, the intention of the testatrix to have the legacies payable out of the real estate appears by necessary implication from the words "residue" or "remainder, "when applied to the two kinds of property combined, unless there are other words or provisions in the will which are inconsistent with the existence of such intention on the part of the testatrix. In other words, that such inference arises from the use of these words under such circumstances, and will be given that effect, unless such construction is restrained or avoided by other words or provisions in the will. Stevens v. Flower, 46 N. J. Eq. 340, 19 Atl. Rep. 777; Merritt v. Merritt, (N. J.) 21 Atl. Rep. 128. This is practically the English rule, as stated in Hawkins, supra, and declared in the case of Greville v. Browne, 7 H. L. Cas. 689. Most of the English authorities were cited in the case of Corwine v. Corwine, supra. The principle has also been enforced in Gyett v. Williams, 2 Johns. & H. 429; Carroll v. Hargrave, 5 Ir. R. Eq. 123; Gainsford v. Dunn, L. R. 17 Eq. 405; Brooke v. Rooke, 3 Ch. Div. 630; In re Bellis' Trusts, 5 Ch. Div. 504; Bray v. Stevens, 12 Ch. Div. 162; Elliott v. Dearsley, 16 Ch. Div. 322; Hays v. Jackson, 6 Mass. 149; Wilcox v. Wilcox, 13 Allen, 252; Gallagher's Appeal, 48 Pa. St. 122; Robinson v. McIver, 63 N. C.649. The rule obtains whether interests in lands have already been given by the will or not. Bench v. Biles, 4 Madd. 187; Francis v. Clemow, Kay. 435; Wheeler v. Howell, 3 Kay & J. 198; Miller v. Sandford, 31 N. J. Eq. 427; Lewis v. Darling, 16 How. 1; Hassanclever v. Tucker, 2 Bin. 525; Moore v. Beck with, 14 Ohio St. 135. The courts of New York do not follow the English decisions and infer an intent to charge legacies on real estate from a blending of the real and personal property in a residuary clause as the rest and residue of testator's estate, but give such effect if it is made to appear by extrinsic circumstances such as may, under the rules of law, be resorted to in the interpretation of written instruments, that it was the testator's intention that the legacies should be charged on the land. Brill v. Wright, 112 N. Y. 129, 19 N. E. Rep. 628; Hoyt v. Hoyt, 85 N. Y. 142; Scott v. Stebbins, 91 N.Y.605; Wiltsie v. Shaw, 100 N. Y. 191, 3 N. E. Rep. 331; McCorn v. McCorn, 100 N. Y. 511, 3 N. E. Rep. 480; In re City of Rochester, 110 N. Y. 159, 17 N. E. Rep. 740. The fact that the testator must have known that the personal estate was not sufficient to pay all the legacies is to be considered in ascertaining his intention to charge them on the lands, and raises a strong presumption that such was his purpose. It is said in the case of Hoyt v. Hoyt, 85 N. Y. 142: "It is assumed that no man, in making a final disposition of his estate, will make a legacy save with the honest, sober-minded intention that it shall be paid. Hence, when from the provisions of a will prior to the gift of legacies it is seen that the testatrix must have known that she had already so far disposed of her personal estate as that there would not be enough to pay the legacies, it is reasoned that the bare fact of giving a legacy indicates that it shall be made from the real estate." And Vice-Chancellor Bacon, in Bray v. Stevens, 12 Ch. Div. 162, says: "I cannot impute to the testator such an absurdity —such a mockery—as to these legatees, as to give them legacies when he knew his personal estate had no means of satisfying them." But in Johnson v. Poulson, 32 N. J. Eq. 390, Dodd, J., says: "Such, however, is the presumption against a charge, unless distinctly imposed, that, though the insufficiency of the personal estate to pay legacies, when so made to appear, creates a strong impression in favor of her intention to charge them, yet, standing alone, it is not enough, as against heirs,to effect such a charge." The legatees are grandchildren of the testatrix. The fact that the beneficiary is not a stranger, but of the testatrix' blood, and that the legacy is the only provision made for him, is entitled to great weight in ascertaining the intention, and also raises a presumption in favor of a charge on the real estate if the personal is insufficient. Hoyt v. Hoyt, 85 N. Y. 142-148; Van Winkle v. Van Houten, 3 N. J. Eq. 189.
It is worthy of consideration in this case that four of the tracts of land not specifically devised the testatrix acquired subsequent to the date of the will. At common law they would not have passed under it. The residuary clause of this will is sufficient to carry them under the statute. Revision, 1248, § 24; Gardner v. Gardner, 37 N. J. Eq. 487. They probably represent personal estate owned by the testatrix when the will was made. As a general rule the will speaks from the death of the testator; but in ascertaining his intention the court can put themselves in his place, and consider the circumstances surrounding the making of the will. It is, for reasons before stated, to be assumed that the testatrix, at the time the will was made, owned property sufficient in quantity and kind to meet the provisions of her will. If she afterwards converted the personal estate, from which the legacies would be primarily payable, into real estate, and made no change in her will, it is a fair inference that she intended the real estate which she owned at her death, and which represented pro tanto the personal estate she owned at the date of the will, to respond for any deficiency of personal estate to meet her gifts. If not, the subsequently acquired real estate will go to the residuary legatee, not by specific devise, indicating the testatrix so intended, but by force of the statute, and the other grandchildren will not receive their legacies in full. Taking the whole will, her scheme is this: She provides for the payment of her debts and funeral expenses by charging them upon Philadelphia property, the residue of which she gives to her sou Robert. She then makes provision for her granddaughter Hannah, who would seem to be he** favorite, by devising to her two tracts of land without charge or limitation. Then she gives pecuniary legacies to nine of her other grandchildren, which amount to $2,020; and then she says: "The rest and residue of my estate, real, personal, and mixed, I give to my son for his natural life, and after his death to my granddaughter Hannah." In consequence of subsequent purchases of real estate, these legacies, amounting to $2,020, to her own blood relatives, her grandchildren, have no means of payment in full unless resort is had in part to the real estate covered by this residuary clause. I am of opinion, not only that the other words or provisions of the will are not inconsistent with the existence of an intention on the part of the testatrix, as is assumed by the rule relied on, but that the circumstances, proper to be considered, strengthen the presumption the law raises from the provisions of the will, in connection with the residuary clause, that it was the intention of the testatrix that the legacies to the grandchildren should be paid out of the real estate devised by the said clause in case there was a deficiency of personal property to fully meet their payment, and that a decree should be made for the sale of so much of the real estate not devised, other than by the sixth item, as may be necessary to pay the deficiency of the pecuniary legacies arising from the insufficiency of the personal estate to discharge the same, and I will advise accordingly.