Summary
In Higbie v. Morris, 53 N.J. Eq. 173, this court, speaking through Mr. Justice Dixon, said: "Aside from statutory provisions, executors have no power to use the lands of the testator for the payment of his debts, except so far as an intent to give them such power appears in the will.
Summary of this case from Zorner v. FothOpinion
08-14-1893
MORRIS et al. v. HIGBIE et al.
Craig A. Marsh, for complainants. Poster M. Voorhees, for defendant Higbie.
Bill by Edward L. Morris and others, executors of the will of Rosetta E. Higbie, against William M. Higbie and others, for a construction of the will.
Craig A. Marsh, for complainants.
Poster M. Voorhees, for defendant Higbie.
GREEN, V. C. Mrs. Rosetta E. Higbie, late of Cranford, died April 11, 1892, leaving a last will and testament dated November 10, 1888, which was duly proved before the surrogate of Union county by the complainants, the executors therein named. She died seised of a tract of land in Plainfield, subject to two mortgages given by her,—one to secure the payment of $1,500 and interest, and the other of $300 and interest,—and also a tract of land in Cranford, subject to a mortgage given by her to secure the payment of $2,500 and interest. After several legacies of specific articles and money, the will provides: "The foregoing money bequests are to be paid without interest, and entirely from money or negotiable securities belonging to my estate at the time of my death, after the payment of all my just debts and funeral expenses, and if, after such payments, there shall not be sufficient residue to pay said money legacies in full, then in that event they are to abate pro rata. I give, devise, and bequeath unto my granddaughter Mary L. Higbie all my right,title, and Interest in and to the premises at the corner of Third and Ninth streets, in the city of Plainfield, N. J., and to her heirs and assigns, forever. All the rest, residue, and remainder of my estate, both real and personal, wherever the same may be, I give, devise, and bequeath unto my grandson William M. Higbie, to his heirs, executors, administrators, and assigns, forever,"—charging said residuary legacy with certain expenses as to the headstones or marble slabs marking the graves of his father and grandfather. The executors ask instructions as to whether the mortgage debts are to be paid out of personal estate, or whether the devisees took the lands cum onere.
There is no dispute that the general rule is that the personal estate is the primary fund for the discharge of the debts, and is to be first applied and exhausted, even to the payment of debts with which the real estate is charged by mortgage. 4 Kent, Comm. 420; Whitehead v. Gibbons, 10 N. J. Eq. 230; Keene v. Munn, 16 N. J. Eq. 398; McLenahan v. McLenahan, 18 N. J. Eq. 101; Slack v. Emery, 30 N. J. Eq. 458; Stone v. Todd, 49 N. J. Law, 274, 8 Atl. Rep. 300. It is true that this rule is within the control of the testator, and is not applicable where his intention to the contrary is either expressed or clearly implied. That intention must be to exonerate the personalty; one simply to charge the realty is not sufficient. Whitehead v. Gibbons, 10 N. J. Eq. 230, at page 232. It is ingeniously argued by counsel for the residuary legatee that such intention is clearly implied from the terms of the devise of the Plainfield lands, "all my right, title, and interest," which it is claimed was only the equity of redemption, and that it is a devise of the lands subject to the lien of the mortgages; that to free the devise from the burden would give the devisee a right more valuable, a title more extensive, and an interest of greater worth than that of the testatrix. But it has been held that a devise subject to a mortgage will not exonerate the personal estate of its primary liability to pay the mortgage debt, on the ground that words used are only descriptive of the property as it is; the master of the rolls in Serle v. St. Eloy, 2 P. Wms. 386, saying the devise of the estate subject to the incumbrance is no more than what is implied, for the testator could not do it otherwise. Astley v. Earl of Tankerville, 1 Cox, 82; Bickham v. Cruttwell, 3 Mylne & C. 763; Hawk. Wills, 279; 3 Jarm. Wills, (Rand. & T. Ed.) 470; 2 Williams, Ex'rs, (6th Ander. Ed.) 1694; Notes to Duke of Ancaster v. Mayer, 1 White & T. Lead. Cas. Eq. (Text Book Series,) 723, at 752. The personal estate is stated by the bill to be inventoried at $3,278.95, its true value. This, it is to be assumed, includes the articles specifically bequeathed. The debts other than those secured by mortgage amount to $600. The mortgages on the Plainfield property devised to Mary L. Higbie amount to $1,800 and interest; that on the Cranford property passing under the residuary clause to $2,500 and interest; the pecuniary legacies to $300. These last are directed to be paid out of money and negotiable securities after the payment of debts. This means, I think, that these legacies are to be paid from such fund after debts other than those secured by mortgage have been discharged. This is in keeping with the rule applicable to the condition of this estate. The personal estate being inadequate to meet the debts, mortgage and unsecured, and the legacies, general and specific, how are the assets to be marshaled? As it does not appear how much of the inventory valuation represents the articles specifically given, I am unable to determine if there is enough money and negotiable securities to pay unsecured debts and pecuniary legacies. Where the decedent has secured a debt by way of mortgage on the land devised, after the exhaustion of the general residuary fund, the devisee of the mortgaged land cannot call for contribution either on the general or specific legatees. Thomas v. Thomas, 17 N. J. Eq. 356; 2 Rop. Leg. 957; 3 Jarm. Wills, (Rand. & T. Ed.) 473. I am of opinion that the executors should apply the assets to the payment and discharge, first, of the unsecured debts, next of specific and pecuniary legacies, and apply the balance to the payment of the mortgages on the Plainfield property, as the specific devise has a prior claim over the residuary.