Quinby v. Frost , 61 Me. 77 ( 1872 )

KeNT, J.

A testator may order his debts and the expenses of administration to be paid out of his personal, or out of his real estate, or out of both, or out of any particular piece or parcel. When he makes no distinct provision as to the specific kind of property, the general rule is understood to be that the debts shall be paid out of the personal property. But this rule is subject to the other well-established rule, that the will of the testator must govern, and that this will, or intention, may be gathered from the provisions of the whole testament, and may be inferred from the nature of the legacies, or devises, and the manifest object and purpose of the testator, and from all the circumstances of the case.

In this case, it is evident that the leading and controlling idea, purpose, and will of the testator, was to make sure and certain provisions for his two sisters and his brother, who lived with him on the farm, the real estate devised, and all the real estate of the testator. His first item is this : “ First — My will is that all my just debts and funeral charges shall, by my executor hereinafter named, be paid out of my estate, as soon after my decease as shall by him be found convenient.”

He then devises and bequeaths to a trustee (the executor also) all of his estate, real, personal, and mixed, without limitation or qualification, and without any allusion to the payment of his debts. He directs his trustee to pay to his two sisters and brother, in equal third parts, the interest money received “ from the personal property and securities I may leave at my death, during their lives, and the life of the survivor or survivors.” We have here a clearly manifested intent, that these relatives should have the income of all the personal property during their lives. It turns out that the debts are nearly equal to the whole value of the personal property. Must the debts be paid from this property thus in the will devoted to the support of his aged relatives, and his sisters and brother ? Was this the intention of the testator when he provided that his debts should be “ paid out of his estate ?”

The provisions of the will in relation to the real estate lead to the same conviction as to the intent of the testator. The trustee has the whole estate devised to him, with power at his pleasure, and according to his best judgment to sell it all for cash or on credit. ,Out of the proceeds he orders a number of legacies of one thousand dollars each to be paid. But he has here carefully provided for the same three relatives, as first to be considered. Until a sale of the real estate, the whole income from it is to be paid to the brother and sisters. Or, if they prefer, they are to occupy and enjoy the same real estate, without charge. In case of sale, before any of the legacies of one thousand dollars can be paid, after a sale of the real estate, the same brother and sisters are to be paid each three hundred dollars annually, out of the money realized from the sale of the land.

The Westbrook Seminary is made residuary legatee.

On a full consideration of the whole tenor and spirit of this will, we are satisfied that it was the intention of this testator to place the whole of his personal property as a fund for the support of his aged near relatives, and that the whole should remain intact and undiminished, for that purpose. We think the estate named in the first item, from which the debts were to be paid, was the real estate, and that it should be charged to such real estate, or to the fund created by its sale. We refer to the case of Fenwick v. Chapman, 9 Peters, 471, in which is found the principles of law before alluded to, and numerous cases cited. The decree, therefore, is, that the true construction of the will of George Frost on the point presented in the bill is, that the debts and funeral expenses named in the first item of the will are to be wholly paid out of the real estate, or from the proceeds of the sale thereof, and that the personal estate is to be retained and the income thereof applied to the use of the eestuis que trust named.

AppletoN, C. J.; WaltoN, DickkksoN, and DaNforth, JJ., concurred.