91 S.W. 921 (Mo. 1906), O'Day v. O'Day

Citation:91 S.W. 921, 193 Mo. 62
Opinion Judge:BURGESS, P. J.
Party Name:SUE I. B. O'DAY, Executrix, and E. W. BANISTER, Executor, Appellants, v. JOHN O'DAY et al.; SUE I. B. O'DAY, JOHN O'DAY, JOHN BALDWIN O'DAY, A. C. O'DAY and CATHERINE O'DAY, Appellants; THOMAS K. O'DAY, Respondent
Attorney:Delaney & Delaney for appellants Banister, John Baldwin O'Day, Catherine O'Day and Sue I. B. O'Day. Tatlow & Mitchell for appellants John and A. C. O'Day. J. T. White for respondent Thomas K. O'Day.
Case Date:January 31, 1906
Court:Supreme Court of Missouri
 
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Page 921

91 S.W. 921 (Mo. 1906)

193 Mo. 62

SUE I. B. O'DAY, Executrix, and E. W. BANISTER, Executor, Appellants,

v.

JOHN O'DAY et al.; SUE I. B. O'DAY, JOHN O'DAY, JOHN BALDWIN O'DAY, A. C. O'DAY and CATHERINE O'DAY, Appellants;

THOMAS K. O'DAY, Respondent

Supreme Court of Missouri, Division Two

January 31, 1906

Appeal from Greene Circuit Court. -- Hon. Jas T. Neville, Judge.

Affirmed.

Delaney & Delaney for appellants Banister, John Baldwin O'Day, Catherine O'Day and Sue I. B. O'Day.

(1) The debts of the estate must be paid primarily out of the residuary personal estate. If this prove insufficient, then the entire personal estate is liable -- general legacies first contributing ratably and then specific legacies and, if necessary, next residuary real estate and next real estate specifically devised; for, under our statutes debts cannot be defeated by the provisions of a will. Booth v. Blundell, 1 Meriv. 193; McKay v. Green, 3 Johns. Ch. 56; Livingston v. Newkirk, 3 Johns. Ch. 312; Rogers v. Rogers, 1 Paige Ch. 188; Rogers v. Rogers, 3 Wend. 506; French v. Masten, 19 Mo.App. 614; Beck v. Kallmeyer, 42 Mo.App. 576; McQueen v. Lilly, 131 Mo. 9; Chinn v. Stout, 10 Mo. 709; Stokes v. O'Fallon, 2 Mo. 29; Brant's Will, 40 Mo. 278; 2 Woerner, Adm., sec. 489; 3 Jarman on Wills, p. 449. Property should be taken in such order for the payment of debts, and, except for the provisions of the statute, real estate, whether specifically devised or devised in residuary clause, cannot be charged with payment of debts unless expressly charged by the terms of the will; or unless charged by necessary implication; or unless the intention of the testator to so charge is manifest from all the terms of the will taken together. Cases cited supra; Wright v. Dunn, 10 Wheat. 205; Archer v. Deneale, 1 Peters 585; Harmon v. Smith, 38 F. 482; Appeal of Thompson (Pa.), 11 A. 455. (2) The will of John O'Day does not in express terms charge the residuary real estate or any real estate with the payment of his debts; nor does it appear from the terms of the will or by implication that he intended so to do. A mere direction to pay debts does not charge realty. Nor does the residuary clause expressly or by implication charge the real estate with the payment of debts. This is merely the usual clause and formula in all wills and simply is the expressed desire of testator not to die intestate. The maxim reddendo singula singulis applies. It is more than saying "the rest of my real estate not hereinbefore devised I give in equal parts and the rest of my personal estate not herebefore bequeathed I give in equal parts." The language does not blend the two kinds of property, but the language is used distributively. Lupton v. Lupton, 2 Johns. Ch. 625; Riley's Appeal, 34 Pa. 391; Brill v. Wright, 112 N.Y. 129; McCorn v. McCorn, 100 N.Y. 511; Briggs v. Carroll, 117 N.Y. 289; Matter of Rochester, 110 N.Y. 159. (3) The same doctrines apply with greater force to the payment of legacies. General legacies and demonstrative legacies which cannot be paid in full out of the corpus designated, are not chargeable on residuary real estate unless charged expressly by the will; or unless the intention of the testator to so charge the realty is manifest from all the provisions of the will; or unless such intention appears by necessary implication. 13 Am. andEng. Ency. Law, 110; Wright v. Dean, 10 How. 204; Laurens v. Reed, 14 Rich. Eq. 259; In re Matthewson, 12 R.I. 146, and cases cited under point 2. And the insufficiency of the personal estate to pay the general legacies is of slight weight in determining the intention of the testator to charge realty unless it affirmatively appears that the testator was aware of such deficiency. DeFrest v. DeFrest, 19 West Dig. 97; Matter of Rochester, 110 N.Y. 159. And see the strong language used in the following cases: Wright v. Dean, 10 How. 220; Brill v. Wright 112 N.Y. 129; McCorn v. McCorn, 100 N.Y. 511; Briggs v. Carrol, 117 N.Y. 289; Cleft v. Moses, 116 N.Y. 144. It is evident from the will itself that O'Day thought he had sufficient solvent notes alone to pay the $ 100,000 legacy and therefore could not have intended to charge the residue. Again, the desire of testator for an equitable distribution is confined to the distribution of the residue in express terms, thereby negativing the idea of an equitable distribution in the specific and general devises and bequests. But even if the language of the will shows testator intended to make John and Allie O'Day equal with Sue O'Day and her children, it will not be inferred that he intended to charge real estate to accomplish such purpose. O'Kesson's Appeal, 59 Pa. 99; 2 Woerner, 491; Morris v. Sickley, 133 N.Y. 450; Turner v. Gibb, 48 N.J.Eq. 526; Duval's Estate, 146 Pa. 176; Drekerman v. Eddinger, 168 Pa. 440; Duncan v. Wallace, 114 Ind. 169; Briggs v. Carroll, 117 N.Y. 289. (4) If these two propositions apply, that the residuary real estate is not chargeable with either payment of debts or payment of legacies, then the residuary personalty being insufficient to pay debts, and the personalty being primarily liable for the payment of debts, the general legacies are adeemed first. 3 Jarman on Wills, 449; 2 Woerner, Adm., sec. 449; Redf. on Wills, part I, p. 868; Wallace v. Wallace, 23 N.H. 154; Humes v. Wood, 8 Pick. 478; Williams on Exrs., p. 437. This being true, if the bequest to John O'Day and Allie C. O'Day be treated either as a general legacy or as a demonstrative legacy, the debts must be made from such legacies if the residuary personalty is insufficient. (5) The bequest of $ 100,000 to John O'Day and A. C. O'Day is a general legacy. For the reasons hereinbefore stated, it is not a charge on the residuary realty, and must adeem if the residuary personalty is insufficient to pay the same after the payment of debts. Cases cited under points 1 and 2. The chief distinction between specific and general legacies is that the former singles out the particular or specific thing which the testator intends the donee to have, no regard being had to its value. Bradford v. Haynes, 20 Me. 105; Wallace v. Wallace, 23 N.H. 154. While the latter, general legacies, are payable out of a general estate, the chief element of the gift being its quantity or value. Abbott's Law Dic., title "General Legacy." This legacy can, or could be, satisfied by the payment out of cash either on hand at death of testator or collected by the executor, or by the setting aside of any notes out of the notes existing at death of the testator. In re Est. of Wm. Salmon, 3 Dem. 270; Maybury v. Grady, 67 Ala. 153; McFadden v. Stefley, 28 S.C. 317; Everett v. Lane, 2 Ire. Eq. 548; Tomlinson v. Bury, 145 Mass. 346; Martin v. Osborne, 85 Tenn. 420; 1 Roper on Legacies, 218; Dicken v. Edwards, 4 Hare 276; Hancock v. Abbey, 11 Ves. 179. (6) At best the power of selection given to John O'Day and A. C. O'Day if timely exercised, merely empowers them to convert the general into a demonstrative legacy, so far as designating the notes as a fund out of which legacy might be paid, and it must be borne in mind that the selection is limited to a selection from notes. This does not make the bequest specific, either by direct terms of the will, because no specific notes are designated; nor does selection make it specific, because the election is to look to a fund, and the election merely designates the fund, and the segregating of certain of such notes is a satisfaction of the election and not the election itself. Gilmer v. Gilmer, 42 Ala. 16; Walton v. Walton, 7 Johns. Ch. 282; Martin v. Osborne, 85 Tenn. 420; Gilbert v. Shirley, 67 Md. 501; Addison v. Smith, 83 Me. 551; Byrne v. Hunn, 86 Mich. 54; Newcomb's Will, 98 Iowa 175; Smith v. Fellows, 131 Mass. 20. (7) The bequest of the seventy-five bonds to Sue I. B. O'Day and her children is specific; and the proceeds of the forty-three bonds sold is subject to such specific bequest. Ashburner v. McGuire, 2 L. C. Eq. (4 Am. Ed.), 672; Spencer v. Higgins, 22 Conn. 521; Gardner v. Prentup, 2 Bar. C. 88; Langdon v. Astor, 3 Duer (N.Y.) 478; Coburn v. Mills, 19 Gratt. (Va.) 438; Larkin v. Salmon, 3 Dem. 270; Towle v. Ewasey, 106 Mass. 100; Hayes v. Hayes, 18 Stem. (N.J.) 461; Stout v. Hart, 2 Halst. 414; Georgia Infirmary v. Jones, 37 F. 758; Starbuck v. Starbuck, 93 N.C. 183; Gilbraith v. Winter, 10 Ohio 64; Gilback v. Shively, 67 Md. 498; Bradford v. Brenley, 145 Mass. 81. (8) It is held by many authorities that real estate passing under the residuary clause is a specific devise. Wallace v. Wallace, 23 N.H. 154; Wyman v. Borgden, 4 Mass. 754; Shreve v. Shreve, 10 N.J.Eq. 385.

Tatlow & Mitchell for appellants John and A. C. O'Day.

(1) The rule in this State is that where the will directs the executor to pay off and discharge the debts out of the estate and then follows this direction by disposing of his property, real and personal, among his children, in substantially equal parts, by separate devises or bequests to them, and charges no specific property, either real or personal, with the payment of his debts, then all devisees and legatees are to contribute equally to the payment of such debts, and the debts are not to be paid entirely out of the real estate, and neither are specific legacies to be given preference over general legacies in the order of abatement of such debts, but all such legatees and devisees are required to contribute equally for the payment of such debts. Brant's Will, 40 Mo. 266; secs. 4648 to 4650, R. S. 1899; 1 Underhill on Wills, sec. 397; Showalter v. Showalter, 38 Ill.App. 208; Reid v. Corrigan, 40 Ill.App. 404; Reid v. Corrigan, 143 Ill. 402; Canal v. Clements, 132 Ind. 163; Hill v. Bean, 68 Me. 200; Wilcox v. Wilcox, 13 Allen 252; Blaney v. Blaney, 1 Cush. 107; Peebles v. Acker, 70 Miss. 356; McQuinn v. Lilly, 131 Mo. 9; 3 Pom. Eq. Jur. sec. 1247; Massacker...

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