Blaney v. Blaney , 55 Mass. 107 ( 1848 )

Metcalf, J.

The plaintiff’s claim is founded on St. 1839, c. 96, $ 1, which is in these words: “ Whenever the estate of one or more devisees under a will shall be taken or assigned, by the judge of probate, for the dower of the widow of the testator, or be set out to her upon a judgment rendered in an action of dower at common law, all the other devisees and legatees shall contribute their respective proportions of the loss to the person from whom the estate is so taken or set out, so as to make the loss fall equally upon all the devisees and legatees, in proportion to the value of property received by them under the will: Provided, that no devisee or legatee shall be held to contribute as' aforesaid, who may be exempted therefrom by the provisions óf the will.”

In giving a construction to this statute, it is proper to take into consideration the previous statutes and the common law.

By St! 1783, c. 24, § 18, it was provided, that when any chattels or real estate, given to any person by last will, should be taken in execution for the payment of the testator’s debts, or should be sold therefor according to law, “ all the other legatees, devisees and heirs ” should refund their proportional part of such loss to the person from whom the bequest should be so taken away, and that he might maintain a suit at law to compel such contribution. The claimants under a will, who were by this statute made liable to contribution, are described in the same terms that are used in St. 1839, c. 96, namely, “all the other legatees and devisees.” Yet we find in the earliest cases which arose under St. 1783, c. 24, <§> 18, that it was contended by counsel, that this section should not be taken literally, but should be so construed as not to affect the preexisting common law doctrine, that specific devises and legacies shall be exempted from abatement when the other devises and legacies are sufficient to pay the testator’s debts. See 2 Dane Ab. 250, et seq. In Hays v. Jackson, 6 Mass. 149, this construction was authoritatively settled by the court; and it was recognized and confirmed by the Rev. Sts. c. 62. By <§><§> 25, 26, of that chapter, it is enacted that “ when any estate, real or personal, that is devised, shall be taken from the devisee, for the payment of the debts of the testator, all the other devisees and legatees shall contribute their respective proportions of the loss to the person from whom the estate is taken; ” provided, however, that “ if the testator shall, by making a specific devise or bequest, have virtually exempted any devisee or legatee from his liability to contribute with the others for the payment of the debt, or if he shall, by any other provision in his will, have prescribed or required any appropriation of his estate, for the payment of his debts, different from that prescribed in the preceding section, the estate shall be appropriated and applied in conformity with the provisions of the will.” And by § 27 it is declared that the foregoing provisions shall not impair, or in any way affect, the liability of the whole estate of the testator for the payment of his debts, but shall apply only to the marshal-ling of the assets, as between those who hold or claim under the will.

By the established rule of marshalling assets, specific devises and legacies are not to be taken for payment of the testator’s debts, until the general devises and legacies are exhausted. A residuary legacy is not regarded as specific, and a residuary legatee cannot call upon the other legatees to abate. 6 Mass. 151; 3 Wooddeson, 532; Preston on Leg. 359; 1 Roper on Leg. (1st Amer. ed.) 284; 2 Jarnian on Wills, 546, 547. If, then, the land devised to the plaintiff had been taken for payment of the testator’s debts, it is very clear that he would have had no claim on the other devisees and legatees for contribution. It is equally clear that he has no such claim, if the devise to him is not a specific devise.

Two questions remain. Is the devise to the plaintiff specific ? If not, does St. 1839, c. 96, give him a right to contribution ?

1. It seems by the English authorities, that residuary devises have been regarded as specific, on the ground that a testator could dispose only of the lands owned by him when his will was made, and therefore that a residuary devise was a gift of such lands only ; and that the lands devised were subject to the rule of marshalling assets, which leaves specific devises untouched, if the general legacies and devises are sufficient, with the other property, to pay the testator’s debts. 2 Jarman on Wills, 547. It may well be doubted whether this rule of the English law was ever adopted in this commonwealth. For though Parsons, C. J., seems to have recognized it, incidentally, in Wyman v. Brigden, 4 Mass 151, cited by the plaintiff’s counsel, yet in the subsequent case of Hays v. Jackson, 6 Mass. 149, he held that a residuary devise, like that which was made to the present plaintiff, could not be considered as specific, within the rule of marshalling assets. And the court, upon a petition for license to sell real estate for the payment of a testator’s debts, ordered the estate, given to the residuary devisee, to be sold, before selling that which was specifically devised.

But we are of opinion,' that since the Rev. Sts. c. 62, $ 3, have enabled testators to devise lands acquired after the making of their wills, by clearly manifesting, by their wills, their intention so to do, the English rule above mentioned, if it ever was in force here, can exist no longer.

On inspecting the will under which the plaintiff claims, we cannot doubt the testator’s intention to give to the plaintiff all the property not before disposed of by the will. He manifestly had in his mind the possible acquisition of real estate after the making of his will. He made a provision for his widow, in lieu of dower in the real estate of which he might “ die seized.” Arid after devising and bequeathing to the p! rintiff “all the rest, residue "and remainder of all” his “ estate, property and effects, of every description, real, personal and mixed,” not before disposed of, he authorized his executor (who was the plaintiff) to sell and dispose of any or all the real estate (not especially devised) of which he might “ die seized.” See Pray v. Waterston, 12 Met. 262.

2. We are of opinion that the plaintiff’s right to contribution, under St. 1839, c. 96, is no greater than it would have been under the Rev. Sts. c. 62, <§><§> 25, 26, if the estate devised to him had been taken for payment of the testator s debts. By those sections, he could not have had contribution from those to whom specific devises or bequests were made ; because they would have been virtually exempted, by the testator, from liability to contribute. And under the proviso in St. 1839, we hold that all the defendants, whether their legacies and devises are technically specific or not, are exempted from contribution “by the provisions of the will.’" This exemption results from the nature and effect of a disposition of property by a residuary devise or bequest. Nothing is given by such -a devise or bequest, except on a contingency that something shall remain after all paramount claims on the testator’s estate are satisfied. The claim of dower, the demands of creditors, the rights of posthumous children not provided for, of children or the issue of deceased children, for whom the testator unintentionally omits to provide, and of other legatees and devisees, must all be satisfied, in the order prescribed by law, before the residuary devisee can take any thing. Whenever, therefore, a testator makes such a devise, without any modification thereof, he, by the necessary legal effect of “ the provisions of the will,” exempts all other devisees and legatees from contribution to the residuary devisee, towards the loss which he may sustain by the taking, for the dower of the widow, the estate de» vised to him.

Bill dismissed.