In re Petition of Mathewson

• Decision Date: 13 July 1878
• Citation: 12 R.I. 145
• Court: Rhode Island Supreme Court
• Parties: PETITION OF DAVID MATHEWSON & HORACE C. ARNOLD, for an Opinion of the Court.

12 R.I. 145

PETITION OF DAVID MATHEWSON & HORACE C. ARNOLD, for an Opinion of the Court.

Supreme Court of Rhode Island.

July 13, 1878

A will after directing the payment of debts and expenses and ordering certain outlays, contained bequests both specific and pecuniary, and closed with a residuary clause which gave " all the rest, residue, and remainder of the estate and property, not hereinbefore disposed of" .... " of whatsoever name and nature, and wherever the same may be," to H. C. A., who was a son of the testatrix, and was named as executor:

The personalty of the estate sufficed for the debts, expenses and specific legacies, but was insufficient to pay the pecuniary legacies in addition:

Held, that the pecuniary legacies were a lien on the realty of the estate.

Held, further, that this lien should be enforced in equity.

Held, further, that the court would not, from the implied lien, imply a power in the executor to sell the realty when this implied power was not necessary to carry out the will.

B. N. & S. S. Lapham, for petitioners.

DURFEE, C. J.

This case is submitted under the statute, Pub. Laws R.I. cap. 563, § 16, April 20, 1876, on an agreed statement subscribed by David Mathewson, adminis trator on the estate of Elmira M. Streeter, with her will annexed, and by Horace C. Arnold, residuary devisee under the will.

The will first directs the payment of debts and expenses and an outlay of money on a burial ground. It then makes certain bequests, specific and pecuniary, to the amount of several thousand dollars. Then follows the residuary clause giving " all the rest, residue, and remainder of the estate and property, not hereinbefore disposed of" .... " of whatsoever name and nature, and wherever the same may be," to Horace C. Arnold, a son of the testatrix, who is named as executor.

The will was made September 27, 1877. The testatrix died October 6, 1877. She left property real and personal. The personal property is sufficient to pay debts and expenses and to satisfy the specific legacies, but not the pecuniary legacies in addition thereto without resort to the real estate, which consists of several tracts of land.

The first question is whether the pecuniary legacies are a lien or charge on the real estate so that it may be resorted to for their satisfaction. We answer the question affirmatively. The residuary clause blends the real and personal estate in one fund, and gives only what remains after the debts expenses, and legacies are paid. Gould v. Winthrop, 5 R.I. 319, and cases there cited; Lapham v. Clapp, 10 R.I. 543; Lewis v. Darling, 16 How. U.S. 1; Francis v. Clemow, Kay, 435; Peacock v. Peacock, 13 W. R. 516. This is a construction which has not always been accepted. Lupton v. Lupton, 2 Johns. Ch. 614; Gridley v. Andrews, 8 Conn. 1; but it is well supported on authority, especially when, as in the case at bar, the...