Bulkley v. Seymour , 74 Conn. 459 ( 1902 )

In construing a will the object of the court is to ascertain the actual intention of the testator as expressed, explicitly or impliedly, in and by the words of the will. In the case at bar the question is whether the testatrix has, in the way above indicated, manifested an intention that the devisees should take the land in question burdened with the mortgage debt. The devises here in question are simply conveyances of the land described, unburdened by any mortgage indebtedness or anything else; and nowhere in the will is there any indication of an intent to limit the gift to the mere value of the equity of redemption. The expressed intent, rather, is that the devisees shall have the full benefit of the described land. Here, then, we have the case of a simple devise of land, which, at the time it takes effect, is subject to a mortgage to secure a debt of the testatrix. The rule in such cases is that the land passes to the devisees exonerated from the mortgage debt, unless a contrary intention appears in the will; in other words, such a devise in such a will "prima facie imports an intention that such debt shall be satisfied out of the general personal assets."Turner v. Laird, 68 Conn. 198, 200; Jackson v. Bevins, 74 id. 96; Hewes v. Dehon, 3 Gray, 205; Gould v. Winthrop,5 R. I. 319. The same rule has been applied to a specific devise of personalty pledged for a debt. Johnson v. Goss,128 Mass. 433.

The case at bar comes within this rule. The testatrix has devised land specifically, and it is subject to a mortgage created by her, to secure her own debt, and she has made no provision whatever in her will for the payment of the debt, nor does she therein indicate any intention that it is to be paid by the devisee. These are the material facts in the case, and there is nothing in the other facts found that affects or changes them, or makes the above rule inapplicable to them. Applying that rule to the case, the will in question must be held to manifest an intent that the mortgage indebtedness, resting upon the land specifically devised, should be paid by the executor as a debt of the testatrix out of the personal assets of the estate.

The Superior Court is advised to render judgment in accordance with the views herein expressed.

No costs in this court will be taxed for or against any of the parties.

In this opinion the other judges concurred.