Noon's Estate ( 1907 )

Mr. Justice Moore

delivered the opinion of the court.

1. It is doubted whether or not that part of the decree requiring the executors to comply with the terms of ,a prior order of the county court directing a sale of real property to pay the claims against the decedent’s estate is before us for consideration. It Avill be remembered that the executors Noon and Cake petitioned for an order authorizing them to apply the sum of $26,427 in payment of certain claims which had been allowed. An exercise of the ]iower thus invoked was necessarily limited to the granting or denying of the prayer of the petition. A reiteration of the prior command to sell the land to pay the debts of the estate, when personal property not specially bequeathed was available, in part at least, for that purpose, could not give additional force to the original order, directing a sale of the real property.

2. The statute in force when the testator died made the personal property of a decedent’s estate not specially bequeathed primarily liable for the payment of all debts against it and of the expenses of administration thereon. If the proceeds of the sale of such property were insufficient for that purpose, the real estate might be sold to pay the claims that had been admitted, etc.: B. & C. Comp. § 1172. The section referred to was amended, after the death of the testator, so as to authorize a sale of the real property of a decedent’s estate for the purposes mentioned, before disposing of the personal property, whenever it was made to appear to the county court or judge thereof that the best interests of all parties concerned therein would be sub-served thereby: Laws 1905, p. 233. The original order of the county court, directing a sale of the real property of the estate before exhausting the personal property for the payment of the debts, was based on the amended statute of which Section 3 thereof is as follows:

“This act shall take effect and apply to, any and all estates of decedents now unsettled and in course of administration as well as those hereafter probated”: Laws 1905, pp. 233, 234.

In State v. O'Day, 41 Or. 495 (69 Pac. 542), Mr. Justice Bean, in speaking of means whereby the owner of land has the just possession thereof, says: “The title to real property descends to the lawful heirs immediately upon the death of the ancestor.” At common law the real property of which a person died seised descended directly to his heir or devisee: 11 Am. & Eng. Enc. Law (2 ed.), 1035; Clark v. Bundy, 29 Or. 190 (44 Pac. 282). The widow and children of W. C. Noon ón August 9, 1904, when he died, became seised of the real propetry devised to them, and their rights therein could not be defeated or impaired by subsequent legislation attempting to subject their land to a liability not imposed thereon when they became invested with the legal title thereto: Brenham v. Story, 39 Cal. 179 ; Estate of Packer, 125 Cal. 396 (58 Pac. 59: 73 Am. St. Rep. 58); In re Newlove’s Estate, 142 Cal. 377 (75 Pac. 1083). The authority of a county court to order the sale of real property of a decedent’s estate is not general, but limited, is derived from the statute conferring the right, and can be exercised only in the manner prescribed: Haynes v. Meeks, 20 Cal. 288. As the deceased left personal property not specially bequeathed which was primarily liable for the payment of his debts, the county court was powerless to order a sale of the real estate until the proceeds of the sale of the former class of property was exhausted. We conclude that the order directing the sale of any part of the real property was void; but, as the direction was not obeyed by the executors, no injury will result therefrom.

It is insisted that no citation was served on the minor heirs as required by law (B. & C. Comp. § 1168), without which jurisdiction of their persons was not secured, and that their general guardian and guardian ad litem were powerless to waive such service and could not enter a general appearance for them. We do not consider it necessary to discuss this question, for any doubt on the subject can be resolved when proper application is made by the executors to the county court to sell the real property of the decedent’s estate, after disposing of the personal property not specially bequeathed, by strictly pursuing the mode ¡prescribed in the statute as a means of securing such jurisdiction.

•3. Considering the case made by the petition and remonstrances, the question is whether or not the testator’s disposal of the shares of stock of the W. C. Noon Bag Co., with direction to the trustees to continue the business of the corporation and equally to distribute the profits -arising from such operation semiannually to the legatees and devisees named, created a specific bequest, thereby exonerating the shares of stock and the dividends that might be declared thereon from the payment of the debts of the decedent’s estate until the other assets thereof had been applied in discharging such claims and the costs and expenses of the administration. The statute exempting particular property of a decedent’s estate from primary liability for the debts thereof provides in effect that, if any article of per-' sonal property has been specially bequeathed, it is exonerated from the operation of the order of sale until resort thereto becomes necessary by reason of a deficiency in the payment of claims from the proceeds of the sale of other property: B. & C. Comp. § 1171. A specific bequest is a testamentay gift of a part of the donor’s personal property which corporal object or dioso in action is so accurately described that it can be identified from all other things of its kind: 1 Roper, Legacies, *191; 18 Am. & Eng. Enc. Law (2 ed.), 714; Johnson v. Goss, 128 Hass 433; In re Estate of Woodworth, 31 Cal. 595.

4. The identity of a certificate which is issued to evidence money or property put into a fund by a person who^ by subscription or otherwise, becomes a member of a corporate body, is sufficient to make a bequest thereof specific when a testator in his- will describes it as “my stock” or “stock standing in my name”, for by the use of the words quoted the donor’s intent to give the particular property mentioned is disclosed: 18 Am. & Eng. Enc. Law (2 ed.), 718; 2 Beach, Mod. Eq. Jur. §1043; Sibley v. Perry, 7 Ves. Jr. 522; Brainerd v. Cowdrey, 16 Conn. 1. To the same effect, see, also, the notes to the ease of Ashburner v. Macguvre, 2 White & Tudor’s Leading Cases in Equity, *267.

5. Specific bequests are not favored, and, unless the will dearly discloses the testator’s intent to give the thing mentioned, the donation will not be considered of that class: 18 Am. & Eng. Ene. Law (2 ed.), 715. In assigning a reason for this legal principle, Mr. Justice Sawyer says: “Courts have always leaned strongly against construing a legacy as specific when there is any doubt, and such a rule of construction is usually far more favorable to the legatee; for a specific legacy is liable to be adeemed, and therefore entirely lost”: In re Estate of Woodworth, 31 Cal. 595.

6. We think there can be no doubt that it was the testator’s intention to vest the trustees named with the title to the stock mentioned, and, as the description thereof is particular enough to identify the subject-matter of the testamentary gift, the bequest is specific, and hence the corpus of the shares of stock is exonerated from liability on account of the debts of the decedent’s estate until a resort thereto becomes necessary by reason of a failure to discharge such obligations from the proceeds of the sales of the remaining property not specifically devised or bequeathed.

The conclusion reached in regard to the shares of stock also applies to the profits accruing from conducting the business of the corporation. Affirmed.