Smith v. Smith , 83 Mass. 129 ( 1861 )

Chapman, J.

In the last will and testament of Burley Smith, of which the parties to this suit are executors, certain specific devises and legacies are given to the plaintiff; and at the close of them is the following clause: “And said devises and bequests to my son Isaac are upon the express condition that my said son shall pay” (several specific legacies); “and also that he shall pay one half of my just debts, his brother Augustus to pay the other half.” Then follow several specific devises and legacies to Augustus; also several to his other children and his grandchildren. Hip. four children are made residuary legatees.

It is contended that the debts stated in the bill to be due tc the plaintiff were satisfied by the legacy to him. But the language of the will indicates no such intention on the part of the testator. It provides that he shall pay half of all the testator’s just debts, and that the defendant shall pay the other half. If nothing were said on the subject, the modern rule of construction would be, that a bequest is to be regarded as a bounty and not as the payment of a debt, unless a contrary intention is expressed. Strong v. Williams, 12 Mass. 390, & Rand’s note. But in this will no rule of construction need be resorted to, for the provision as to debts is expressed plainly.

It is argued that the defendant is not equally bound with the plaintiff, because this provision is found in connection with the legacies to the plaintiff, and makes his legacy conditional in terms, while nothing is said of debts in connection with the defendant’s legacies. But no particular form of words was necessary to express the testator’s intention; it was not necessary to repeat the provision as to debts; and as the words are plain, the defendant is liable to pay half the debts.

The notes described in the plaintiff’s bill are debts, to fie paid as provided in the will. The parties being co-executors and devisees, a suit in equity is the plaintiff’s appropriate remedy, by Rev. Sts. c. 81, § 8. Demurrer overruled.