Plater v. Groome , 5 Md. 96 ( 1853 )

Eccleston, J.,

delivered the opinion of this court.

Mrs. C. L. Edmondson having appointed the appellant executor of her last will and testament, gave him $250 out of the first year’s rent of her farm as compensation for his services; and in .further compensation for his trouble as executor, and as a special and additional legacy to him, she gave him “ail moneys, debts, bonds, notes and other evidences of debt,” being in her possession at her decease, “he, however, first paying therefrom and thereout all debts of every kind” against her or her estate.

In this bequest there seems to be a manifest intention to provide the means of paying, not only such debts as might be due by the testatrix at her decease, but likewise all claims which should arise against her estate. With such a provision in the will, the application of the appellant could not properly have been granted by the orphans court, unless there had been proof to show that the claims due to the testatrix at her decease were not sufficient to discharge the debts due by her and the expenses of administration, including the costs and counsel-fees mentioned in the petition. And there being no such proof, the court were right in directing that the costs and-fees should-be allowed out of the fund set apart for the payment of debts.

The language employed by the testatrix to express- her intention in regard to the application of this fund is very emphatic, for out of it all debts of every hind against her or her estate are to be first paid before the legatee is to have any portion thereof. Such a provision, we think, makes the fund as much applicable to the discharge of debts and costs attendant upon the administration as would be any fund directed to-be appropriated toward the payment of debts without a bequest of the balance thereof to any particular legatee, or as would be any general residuum.

■ The order of the orphans court will, therefore, be affirmed with costs to the appellee. Order affirmed.

Le Grand, G. J., dissented.