Turner v. Laird , 68 Conn. 198 ( 1896 )

Baldwin, J.

A specific devise of land, mortgaged by the testator to secure his own debt, prima facie imports an intention that such debt shall be satisfied out of the general personal assets. Hewes v. Dehon, 3 Gray, 205. In the case at bar, this presumed intention, with respect to the “ Geer house,” finds additional support in the provision made by the testator in the first article of his will, directing his executor to pay all his just debts and funeral expenses and the legacies subsequently given out of his estate. The word “ debts,” in such a connection, includes mortgage debts. Bishop v. Howarth, 59 Conn. 455, 465.

That the holders of the mortgages in question did not present their claims against the estate, did not, as between the executor and the devisees of the mortgaged property, discharge his obligation to pay them off. The extent of the testator’s bounty to his grandson could not be thus reduced by the acts or omissions of third parties. The plaintiff’s duty was the same as if the devise of the “ Geer house ” had been followed by an express direction that any mortgage upon it should be paid by the executor. A payment thus required is made to effectuate a gift from the testator to the devisee. It may be also the satisfaction of a claim legally presented. It may, on the other hand, be made to a creditor who does not wish to receive it, but prefers to let the debt-remain on interest, and rely on his collateral security for its ultimate discharge.

The residuary devise and bequest was of what might remain “after the payment of my said debts and funeral-expenses, and the preceding legacies and devise'.” This language charged on the residuary real estate all debts which the personal estate was insufficient to satisfy. Enough of the residuary real estate must therefore be sold to discharge the mortgage on the “ Geer house.” That on the store building should be satisfied in the same way, unless the residuary devisees otherwise agree.

Section 556 of the General Statutes which provides that when any estate devised shall be taken for payment of debts, a contribution shall be due from the other legatees or devisees, applies only when the will is silent, or its intent uncertain. Here the estate taken is residuary estate, and the testator required the debts to be paid before the residue was formed.

The Superior Court is advised that it is the duty of the plaintiff to pay the mortgage on the “ Geer house,” and, if requested by any of the residuary devisees, that on the store building; and that the requisite funds should be raised by sale of so much as may be necessary of the residuary real estate.

In this opinion the other judges concurred.