Logan v. Deshay

The Vice Chancellor.

The testator in his will has given various pecuniary legacies, to be paid out of his personal estate specifically. He has devised his real estate and his residuary personal estate to his son Benjamin Bower ; but he has appointed a stranger to his blood and to his will, his executor. A period of nearly five years elapsed between the making his will and the death of the testator. During this period, the real estate of the testator was enhanced very considerably in value; and I have no doubt, from the testimony, that the testator, just before his death, wished to vary the disposition of his property as made by his will, so as to give his other children, except Benjamin, a greater amount than they would have received under the will. The proofs seem to "sustain this view of the case, particularly the testimony of Patrick Galbraith. Unfortunately, the testator, instead of altering his will to secure this object, determined upon the expedient of selling his personal estate to his son Benjamin, and taking his notes payable to his other children, at times when he supposed either that they would want the money, or that Benjamin could conveniently pay ■ them. These notes were enclosed in the will; and I have no doubt they were intended to be in addition to the legacies given in the will itself. The will itself was suffered to remain unaltered. An executor has nothing to do with any of the estate of the decedent, except the personal estate. This is the fund out of which debts and legacies are to be paid.. He cannot touch the real estate for the payment of legac^es’ without power is given to him in the will to dispose of it for that purpose. And the devisee of real estate receives it discharged of any claims for legacies, unless this species of property is expressly charged with that burden, except in certain cases where the devisee is made executor with directions to pay legacies, in which case he takes the devise cum onere. Such is not this case. Here the devisee is not appointed executor; and if he was, the rule would not apply to him, as in this case the legacies are expressly required to be paid out of the testator’s personal property. Here, then, by the application of the plain and well settled rules of law, the personal estate having all been disposed of du- - ring the testator’s life time, all the legacies fail. There is no fund out of which to pay them. The testator unquestionably had a right, during his life time, to dispose of his personal estate. This he has done; and this (the personal estate) being the fund out of which the legacies were to be paid, by the destruction of this fund, the legacies growing out of it are adeemed.

The taking of the notes for this personal estate in the manner they were taken, and placed as they were placed, is an appointment of the payment thereof to the persons to whom they were made payable. The testator, in my opinion, intended to make an alteration in the disposition of his property, by making certain appointments in addition to the testimentary provisions in his will. But his will remains unaltered, and we must recognise it as his will. The rules of law on this subject are inflexible and unbending, and very "properly so, otherwise courts would make wills •for parties upon perhaps loose proof. If the testator has not chosen to alter his will in the mode declared necessary by law, the court cannot alter it for him. If he has failed to carry out his intention, by a mistake as to the legal effect of the mode adopted, it is his misfortune and the misfortune of those who would be benefitted by it. Even this is better than to open a door for construction which would enable the court to make a new will for the party. In the light in which I view the case, the notes given are not assets in the hands of the executor. They must be handed over to the parties respectively, to whom they are made payable. I infer from the pleadings that this will leave the executor without any personal assets; consequently he will have no means to pay to either the widow or the children the legacies mentioned in the will, and he cannot therefore pay them, and they cannot take any thing by this apparent bounty of the testator.

Neither has he any means -out of the estate to pay the expense of this litigation; but as he was justified in coming here to ask the advice of this court in a question of this character, it is not just that he should be compelled to pay the costs out of his own pocket. The expense should be paid out of the estate of the decedent in the hands of the executor, if any; if not, I do not see but he must- pay his own costs, as there is no fund upon which it can be charged. There can be no other provision made for his costs, as it does not appear by the bill that he offered the persons to whom the notes were made, to deliver them the notes. But no costs are given against the complainant on behalf of the defendants.