Opinion
2 Div. 972.
November 20, 1930.
Appeal from Circuit Court, Dallas County; Thos. E. Knight, Judge.
S. F. Hobbs, of Selma, for appellants.
The personal property of an estate is primarily liable for the discharge of the debts of the estate, and the debts are not chargeable against the realty until the personalty has been exhausted, unless the will plainly shows a contrary intent. Pitts v. Campbell, 173 Ala. 604, 55 So. 500; Banks v. Speers, 103 Ala. 436, 16 So. 25; Baldwin v. Alexander, 145 Ala. 186, 40 So. 391; Newsome v. Thornton, 82 Ala. 402, 8 So. 261, 60 Am.Rep. 743; Gorman v. McDonnell, 127 Ala. 549, 28 So. 964; Code 1923, §§ 5847, 5857, 5858, 5832. Every devise of land must be construed to convey all the estate of the devisor therein, unless intent to convey a less estate clearly appears. Code 1923, § 10581. Realty specifically devised will be the last used to pay the debts of testator. 28 R. C. L. 300; Gordon v. James, 86 Miss. 719, 39 So. 18, 1 L.R.A. (N.S.) 461; McFadden v. Hefley, 28 S.C. 317, 5 S.E. 812, 13 Am. St. Rep. 675; French v. Vradenburg, 105 Va. 16, 52 S.E. 695, 3 L.R.A. (N.S.) 898, 115 Am. St. Rep. 838, 8 Ann. Cas. 590; Steele v. Steele's Adm'r, 64 Ala. 438, 38 Am. Rep. 15. The devisee of realty on which there is a mortgage is entitled to have the realty exonerated by the discharge of the lien out of the personalty of the estate. Morgan v. Watkins, 214 Ala. 671, 108 So. 561. The testator is shown by the will, in the light of the presumption that he knew and acted upon the law, to have intended that his debts be paid out of his personal estate; his specific bequests being of the diamond ring, watch, chain, and shotgun. Maybury v. Grady, 67 Ala. 147; Morgan v. Watkins, supra; Gordon v. James, supra. The bequests to Martha Cross of insurance and of all cash in bank, etc., are neither specific bequests. Kelly v. Richardson, 100 Ala. 584, 13 So. 785; Myers' Ex'r v. Myers, 33 Ala. 85; Gilmer's Legatees v. Gilmer's Ex'rs, 42 Ala. 9; Trustees of Unitarian Society v. Tufts, 151 Mass. 76, 23 N.E. 1006, 7 L.R.A. 390; 11 L.R.A. (N.S.) 58 note.
Harry W. Gamble and Mallory, Mallory Lapsley, all of Selma, for appellee.
The devise of testator's interest in the realty and all the bequests of personalty are specific. 28 R. C. L. 289, 290, 295; 18 A. E. Ency. L. 594; 18 A. E. Ency. L. (2d Ed.) 714; 1 Brickell's Dig. § 127; Kearns v. Kearns, 77 N.J. Eq. 453, 76 A. 1042, 140 Am. St. Rep. 575; American Trust Banking Co. v. Balfour, 138 Tenn. 385, 198 S.W. 70, L.R.A. 1918D, 536; Nusly v. Curtis, 36 Colo. 464, 85 P. 846, 7 L.R.A. (N.S.) 592, 118 Am. St. Rep. 113, 10 Ann. Cas. 1134; Baker v. Baker, 319 Ill. 320, 150 N.E. 284, 42 A.L.R. 1514; Powell v. Labry, 210 Ala. 248, 97 So. 707; Kelly v. Richardson, 100 Ala. 596, 13 So. 785; Graham v. DeYampert, 106 Ala. 279, 17 So. 355; Mayfield v. Cook, 203 Ala. 49, 82 So. 9; Myers' Ex'r v. Myers, 33 Ala. 85; Willis v. Barrow, 218 Ala. 549, 119 So. 678; Marbury v. Grady, 67 Ala. 153; Prendergast v. Walsh, 58 N.J. Eq. 149, 42 A. 1049; Bullard v. Leach, 213 Mass. 117, 100 N.E. 57; Towle v. Swasey, 106 Mass. 100; Harper v. Bibb, 47 Ala. 547. Both real and personal property are equally liable for debts of decedent and realty devised and personalty bequeathed, where the devise and legacy are of the same character, abate ratably where there is a failure of assets undisposed of by the will to pay debts. Kelly v. Richardson, supra; Powell v. Labry, supra; Marbury v. Grady, supra; 3 Pom. Eq. Jur. (4th Ed.) 1137; 3 Woerner, Adm'r (3d Ed.) 1541; 28 R. C. L. 289; Dauel v. Arnold, 201 Ill. 570, 66 N.E. 846; Rosser v. Sanders, 219 Ala. 327, 122 So. 340. Specific bequests or legacies cannot be defeated by appropriating the personal assets of the testator to the payment of incumbrances on his real estate for the benefit of the devisee thereof. 28 R. C. L. 305; Smith v. Kibbe, 104 Kan. 159, 178 P. 427, 5 A.L.R. 492, note; Glass v. Dunn, 17 Ohio St. 413; Thomas v. Thomas, 17 N.J. Eq. 356; Hedger v. Judy, 95 Ky. 557, 26 S.W. 586; O'Neal v. Mead, 1 P. Wms. 693, 24 Eng. Rep. 574; In re Mason, 1 Pars. Sel. Eq. Cas. (Pa.) 129; Morris v. Higbie (N.J.) 27 A. 438; Gould v. Winthrop, 5 R.I. 319; Brown v. James, 3 Stroth. Eq. (22 S.C. Eq.) 24; Jackson v. Bevins, 74 Conn. 96, 49 A. 899; Gilchrist v. Butler, 214 Ala. 288, 107 So. 838.
The last will and testament of Edwin Kirk May, deceased, provided in presently material part as follows:
"I will to my sister, Ruth May all my interest in my father's estate.
"I will to Martha Cross all my insurance, all the cash which I may have in banks or elsewhere, either due me by notes and mortgages or otherwise."
There were specific bequests of testator's diamond ring, watch, and shotgun.
It is averred that the estate of decedent owes debts, that there is no residuary estate out of which such debts might be paid, that deceased made no specific provision in and by his will for the payment of his debts, and that prayer of the bill involving the difference between the parties and with which the court is presently concerned is that a reference be ordered "to ascertain the reasonable value of said specific devise" — thereby intending land which testator had inherited from his father — "and of each of said specific legacies or bequests as of the date of the death of the testator and that said devisee and said respective legatees be required to contribute ratably to the payment of all of the debts of said estate."
The question presented for decision is whether the disposition of testator's personal estate witnessed by his will is specific or general, there being no denial that the devise of testator's interest in his father's estate, land, is specific. If the bequests are specific, then the land devised must be decreed to contribute ratably to the payment of the remaining debts of testator's estate. Otherwise, such debts must be first satisfied out of the personal estate to the full extent such estate may be adequate to that end.
It will not be doubted that the bequests of testator's diamond ring, his watch, chain and charm, and his shotgun, were specific.
"A specific legacy is a bequest of a particular article or specific part of the testator's estate, which is so described and distinguished from all other articles or parts of the same as to be capable of being identified." Kelly v. Richardson, 100 Ala. 596, 13 So. 785, 790.
It will not be thought that testator had in mind the distinction between general and special legacies. The learned courts are not always agreed as to that. Nevertheless a definite intention must be attributed to the testator in order that the purposes of the law and, as nearly as may be consistently therewith, the purposes of the testator, may be given effect. The question is one of presumed intention — presumed from the language employed though not definitely in point.
The bequest of "all my insurance" and as well that of "all the cash that I may have in banks or elsewhere, either due me by notes and mortgages or otherwise," appear to be specific. These are gifts of specific things, funds. Prendergast v. Walsh, 58 N.J. Eq. 151, 42 A. 1049; Kearns v. Kearns, 77 N.J. Eq. 453, 76 A. 1042, 140 Am. St. Rep. 575; Towle v. Swasey, 106 Mass. 100. Persuasive to the same view are Kelly v. Richardson, 100 Ala. 584, 13 So. 785; and Maybury v. Grady, 67 Ala. 147.
It results that the realty devised to Ruth May, after the mortgage on it shall have been satisfied, must contribute ratably to the payment of debts due from the estate of testator.
We have considered the questions debated between the parties. The bill prays for a construction of the will. The demurrer was correctly overruled.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.