Morgan v. Watkins

The testatrix, in paragraph 1 of her will, set aside $1,000 of Liberty bonds as a fund primarily chargeable for the payment of her debts, and also for the payment of the expenses incident to the probating of the will.

In paragraph 2 she bequeathed to the contestant, Annie May Morgan, $1,000 of Liberty bonds, but charged the bonds with liability for the payment of her debts, and for the payment of the expenses of probating the will, in the event that the first $1,000 of bonds should be insufficient for those purposes; and the executrix was directed, in that contingency, to sell and use such amount of the bonds as might be required.

In paragraph 4 she devised to Bertie Acker and the contestant, Annie May Morgan, jointly, certain described real property in Barbour county. On this property the testatrix had given a mortgage to secure her personal indebtedness evidenced by her note for $650, which with accrued interest amounted to $692.86 — which amount the executrix paid to the mortgagee and payee, the Barbour County Bank.

This item was unquestionably a debt of the testatrix (Green v. Moore, 1 Stew. P. 212), which the executrix was required to pay — out of the $1,000 of bonds bequeathed to the contestant, if necessary. It was necessary, of course, to resort to the bonds for the payment of the testatrix's personal debts, and of the expenses of probating the will, if the aggregate of those debts and expenses exceeded the amount of $1,000 available from the fund primarily chargeable therewith.

The record shows that the executrix received as assets of the estate the sum of $2,588.24, which included the proceeds of all of the Liberty bonds; $20.56 in cash on deposit; and $518, recovered on a judgment in favor of the testatrix, as to which she died intestate, no disposition being made of it in the will by either special or residuary bequest.

The record shows, also, that the indebtedness of the estate, including the mortgage debt of $692.86, counsel fees allowed the executrix in the sum of $300, the cost of a monument for the grave of the testatrix, and other items, the nature of which is not disclosed, amounted to $2,337.23. From this it appears that $485 of the indebtedness of the estate was not within the classes of debt primarily chargeable upon the Liberty bonds. On the contrary, those debts, and also the costs of administration generally — the post mortem debts of the estate — were chargeable primarily upon any part of the testatrix's personal estate not specially bequeathed, and especially upon any part not disposed of by the will at all, in exoneration of specific legacies and devises. 40 Cyc. 2067, d and e; Kelly v. Richardson, 100 Ala. 584, 599, 13 So. 785. And even undevised real property is chargeable with the payment of debts in exoneration of such legacies. Lightfoot v. Lightfoot's Ex'r, 27 Ala. 356.

In this respect the decree of the trial court is erroneous. The unbequeathed personal estate, $518, should have been applied to the payment of the post mortem debts of the estate, before charging those debts upon the residue of the proceeds of the Liberty bonds after payment therefrom of the particular debts charged upon them by the will. If thereafter any part of the $518 remain, it should be divided among the testatrix's heirs at law as they may be entitled.

The decree of the probate court will be reversed in the particulars indicated, and the cause will be remanded for correction of the decree in accordance with this opinion.

Reversed and remanded.

ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.

On Rehearing.