Black v. Black

• Decision Date: 16 August 1929
• Docket Number: No. 5597.,5597.
• Citation: 58 N.D. 501,226 N.W. 485
• Parties: BLACK et al. v. BLACK et al.
• Court: North Dakota Supreme Court

58 N.D. 501

226 N.W. 485

BLACK et al.

v.BLACK et al.

No. 5597.

Supreme Court of North Dakota.

April 18, 1929.

Rehearing Denied Aug. 16, 1929.

Syllabus by the Court.

When a will, in addition to general provisions for the payment of debts, contains a direction for the payment of a particular obligation, it is not necessary to present such claim for allowance.

Under section 5722, C. L. 1913, a testator may by express provision in his will appropriate specific property for the payment of debts, and under section 8731, C. L. 1913, it is the duty of the executors to follow such direction, so far as the appropriated property is sufficient, there being ample other property in the estate to pay the expenses of administration, last sickness, funeral, and family allowances.

Section 8755, C. L. 1913, which provides for the order of payment of the debts and charges against an estate, giving priority to the necessary expenses of administration, does not deprive a testator of the right to make other provision consistent with sections 5722 and 8731, C. L. 1913.

When an executor's account shows that moneys belonging to the estate which have been appropriated by the testator to a specific purpose have been used to discharge other obligations, the executor may be directed to reimburse the estate.

A grant takes effect only upon its delivery by the grantor (section 5495, C. L. 1913), and the burden is upon the grantee to prove delivery. It is held in the instant case that the record shows no delivery of a deed to the grantee.

When the property which a testator has specifically appropriated by his will for the payment of his debts, as permitted by section 5722, C. L. 1913, proves insufficient, the deficit, in the absence of a residuary estate, and there being no part of the estate not devised or disposed of by will (section 8732, C. L. 1913), must be spread over the several devises or legacies in proportion to their value or amount, as provided by section 8733, C. L. 1913.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Final accounting and petition for distribution by Frank Sumner Black and another, executors of the estate of William Hunter, deceased, wherein a controversy arose between the Trustees of the Synod of North Dakota of the Presbyterian Church, as trustees for Jamestown College, and other legatees, devisees, and executors. From the decree therein, Alice M. Hunter Black and the executors appeal. Case remanded, with directions.Spalding & Redetzke and Pollock & Pollock, all of Fargo, for appellants.

Knauf & Knauf, of Jamestown, for respondents.

BUTTZ, District Judge.

We are required to construe certain provisions of the will of William Hunter, deceased. Rev. William Hunter was a pioneer Presbyterian minister of this state, interested in Christian education, and had much to do with the reorganization of Jamestown College by the Presbyterian Synod of North Dakota about 1909. He apparently ever after was closely in touch with the affairs of this school and a contributor to its support.

Finding his pledges in arrears, and being desirous of paying that debt to the college and to furnish other funds to be used, to quote, “as seed for a new enterprise, namely, the beginning of a foundation for a hospital on the college grounds,” he made provision for these matters in a will executed by him December 20, 1922. This will, omitting formal parts, reads as follows:

“First. I will and direct that all of my just debts be paid as soon as may be after my decease out of my estate.

Second. * * *

Third. I have deeded to my adopted daughter, Alice M. Hunter Black, the northwest quarter (NW 1/4) of section thirty-one (31) in township one hundred fifty (150) north, of range fifty-six (56) west, and it is my wish that this land be appraised as of the date of my death and in the event that such appraisal does not show the land to be worth ten thousand (10,000) dollars, I will and direct that my said daughter be paid the difference between such appraised value and the sum of ten thousand dollars out of the residue of my estate before any division of such residue is made.

Fourth. I have deeded to the Trustees of the Synod of North Dakota, of the Presbyterian Church, the southwest quarter (SW 1/4) of section twenty-five (25) in township one hundred fifty (150) north, of range fifty-seven (57) west, which said land is now subject to a mortgage, and I will and direct that my executors pay the said mortgage from funds hereinafter provided for, so that the said land shall go to the said Synod, free and clear from all liens and incumbrances. This said land is deeded to the said Synod for the following uses and purposes: To pay any and all pledges made by me or indebtedness which I owe to Jamestown College, located at Jamestown, North Dakota; that any balance remaining after the payment of such pledges and indebtedness shall be used to establish a hospital to be located on the college grounds of Jamestown College at Jamestown, North Dakota, and to be under the care and supervision of the Trustees of said Synod of North Dakota.

Fifth. * * *

Sixth. To my beloved son, Joseph J. Hunter, I give and devise any interest which I may have or now have in the southwest quarter (SW 1/4) of section seventeen (17) in township one hundred fifty-four (154) north, of range fifty-seven (57) west, which belonged to my wife, now deceased, and which she desired should go to my said son; and I also give and devise to my said son, Joseph J. Hunter, the southeast quarter (SE 1/4) and the southwest quarter (SW 1/4) of section thirty (30) in township one hundred fifty (150) north, of range fifty-six (56) west, Grand Forks county, North Dakota.

Seventh. I will and direct that my executors shall sell the property owned by me and described as follows, to wit: The east one-half (E 1/2) of lot five (5) in block three (3) of Island Park addition to Fargo, also known as 360 Seventh Avenue South, Fargo, North Dakota, and that from the proceeds of such sale, shall pay all of the indebtedness owed by me at the time of my decease, the balance, if any, to become a part of the residue of my said estate.” (Italics are ours.)

Other provisions make the daughter Alice and the son Joseph residuary legatees and nominate executors. Some months thereafter the testator died, this will was duly admitted to probate in the county court of Cass county, and the executors named therein duly qualified and entered upon their duties.

Eventually the executors made a sale of the property described in paragraph 7 of the will, which consisted of a house and lot in the city of Fargo, and which is known in these proceedings as the Island Park property. On this sale, after deducting the mortgage indebtedness against that property, the executors realized approximately $3,490. In the course of administration all or practically all of the proceeds of this property were exhausted by the executors in the expenses of administration, including attorney's and executors' fees. It is not clear from the record, but apparently there was little other personal property or income to go to the executors. When the final account and petition for distribution was filed in the county court, a controversy arose between the Trustees of Jamestown College and other legatees and devisees, and the executors, as to the rights of the college under paragraphs 4 and 7 of the will. It is the contention of the college that it was entitled to receive its land free and clear of all incumbrances, that it was the duty of the executors to pay the mortgage thereon in full from the proceeds of the sale of the Island Park property, if the proceeds thereof were sufficient, and, if insufficient, the remainder of such mortgage indebtedness should be paid out of funds to be made from other property of the estate not devised to the college.

The position of the appellants is that the testator had no right to direct the use of any portion of his estate for the payment of the mortgage in question or for any other specific purpose in preference to what they claim is the legal right of the executors to use such funds for the payment of the expenses of administration; that he could not give precedence under a legacy to a nonrelative over that which he gave to next of kin; that the executors may of right devote the proceeds of the Island Park property to the expenses of administration; and that, if such expenses exhaust this fund out of which the mortgage debt on the college land was to have been paid, the college must take its land with the mortgage indebtedness thereon, and, in addition, the quarter section going to the college must bear its due proportion of the debts of the estate and expenses of administration as may remain after the undevised property of the estate, including the proceeds of the Island Park property, have been exhausted.

As a solution of the problem thus presented, objections to the accounting having been filed, all of the parties joined in a request to the county court for a construction of the will, to the end that the questions presented might be disposed of. This request was granted and a hearing thereon duly had before Hon. Leigh J. Monson, judge of said court, upon which hearing there was before the court the will in question and its files and records in said estate; there was also taken and made of record the testimony of the witnesses offered by the various parties, and certain exhibits, consisting of letters written by deceased to President Kroeze of the college during the testator's lifetime after the execution of the will, the note covering testator's pledges, and the note of $3,000 and unpaid coupon notes, and the mortgage securing the same, representing the indebtedness against the land devised to the college.

Thereafter the county court entered its “order of construction of the will,” wherein that court declared the intention of the testator to be “that said executors should pay from the assets of...