Clotilde v. Lutz

• Decision Date: 26 June 1900
• Citation: 57 S.W. 1018,157 Mo. 439
• Parties: CLOTILDE, Appellant, v. LUTZ, Administrator, et al
• Court: Missouri Supreme Court

57 S.W. 1018

157 Mo. 439

CLOTILDE, Appellant, v. LUTZ, Administrator, et al

Supreme Court of Missouri, Second Division

June 26, 1900

Transferred from St. Louis Court of Appeals.

Reversed and remanded (with directions).

Roland L. & John Johnston for appellant Clotilde.

1st. The circuit court misconstrued the will of Barbara Lutz deceased. Upon the law and the evidence in the case the judgment should have been for plaintiff and order of sale made as prayed for. The will is in evidence, relied upon by all the parties to this action. It was made by M. Barbara Lutz just six weeks prior to her death. She knew when she made it, that she had no personal estate out of which her legacies could be paid, but knew she had ample real estate to pay them all, and leave a surplus of $ 15,000. She knew that in presence of witnesses (Mrs. Bauer and C. F. Bauer) she had informed George A. Lutz, her husband, executor and residuary devisee, "that as she had no money with which to pay her intended legacies, she would devise real estate to him, which he could sell, and from the proceeds pay the legacies." Pursuant to this expressed intent she made this will containing her numerous legacies, and making her executor, husband, sole devisee of her real estate. "On the other hand, a residue given together with certain specified property, will not make the gift of that property specific, if its mention can be accounted for on the ground that the testator wished to except it from another gift in the will." Fairer v. Park, 2 Theobold on Wills, p. 112; 13 Am. and Eng. Ency. of Law, pp. 115, 116; 2 Woerner on Administration, p. 1157, sec. 491; Duncan v. Wallace, 114 Ind. 159; 13 Am. and Eng. Ency. of Law, p. 112; Dowman v. Rush, 6 Rand (Va.) 587; McCorn v. McCorn, 3 N.E. 480; Jourdan v. Ducker, 3 S.W. 465; Martin v. Osborne, 3 S.W. 465; Norman v. Olney, 31 N.W. 559.

F. G. & Wm. F. Woerner for Richardson, public administrator in charge of M. B. Lutz's estate.

(1) The charge of a legacy on the realty may be made by implication, when the intention appears to be fairly and naturally inferable from the context of the will. Woerner on Administration, sec. 491; McQueen v. Lilly, 131 Mo. 19. (2) A legacy may be charged on realty devised, if it appear "that the testator intended legacies to be paid knowing that his personal estate would be insufficient for that purpose." Miller v. Cooch, 5 Del. Ch. 179; Jaudon v. Ducker, 27 S.C. 299; Morris v. Sickly, 133 N.Y. 457. (3) And where the will leaves the court in doubt, extraneous circumstances may be considered in aid of its terms. Hoyt v. Hoyt, 85 N.Y. 142; Davenport v. Sargent, 63 N.H. 543; Duncan v. Wallace, 114 Ind. 169; Stevens v. Flower, 46 N.J.Eq. 340; Turner v. Gibb, 48 N.J.Eq. 526.

Cornelius F. Bauer for respondent Cecilia Lutz.

(1) It is a well established rule in equity, that the personalty is not only the primary but the only fund liable for the payment of legacies, unless they are charged on the realty either by express direction or by necessary implication. Woerner on Administration, 1095; 13 Am. and Eng. Ency. of Law, 110. (2) Land specifically devised can not be charged with the payment of general legacies. Specific devises and legacies have preference over general legacies; and a legacy is only specific when it is a bequest of a particular article of the testator's estate, which is so described and distinguished from all other articles or parts of the same kind as to be capable of being identified. In re Est. of Elizabeth Neistrath, 66 Cal. 330; Graybill & Butts v. Warren, 4 Geo. 536; Maroni v. Stone, 2 Cowen, 810; 13 Am. and Eng. Ency. of Law, pp. 10, 12; Phillips v. Clark, Adm'r, 18 R. I. 627. (3) To charge lands with the payments of debts or legacies, requires express words or necessary implication. Duvall's Est., 146 Pa. St. 176; Gerken's Est. 1 (Tuck.), N. Y. 49; Potter v. Ford, 7 S.W. 29. (4) A mere direction in a will to pay all debts or legacies is not a charge upon the real estate for that purpose, and furnishes no evidence of an intent to charge it. Harmon v. Smith, 38 F. 482. (5) A devise after the payment of debts does not create a charge by implication. Newson v. Thornton, 82 Ala. 402; Miller's & Bowman's Appeal, 60 Pa. St. 404; Smith, Exr., v. Soper, 32 Hun. (N. Y. Sup.) 46. (6) And though devisees are personally charged with the payment of legacies, yet the legacies are not a charge upon the lands devised. Taylor et al., Excrs., v. Tolen et al., 38 N.J.Eq. 97. (7) Where personalty is bequeathed subject to payment of debts, and the realty specifically devised, the personalty only should be applied for payment of such debts. Johnson v. Milksopp, 2 Vern. 111. (8) Where a testator begins his will by requiring his just debts paid, and afterwards gives legacies, and specifically devises lands, such devise is not charged even with the payment of debts. Eyles v. Cary, 1 Vern. 457; Harris v. Douglas, 64 Ill. 472; In re Rochester, 110 N.Y. 159; 2 Woerner on Administration, 1097. (9) Nor are lands charged by a mere direction of the testator to pay a legacy. It must appear from the will that it was his intention to onerate the land, otherwise the direction is merely personal; and it must also appear from the context of the will, that the personalty is not referred to. Lee v. Lee, 88 Va. 805; Worth v. Worth, 95 N.C. 239. (10) There is no ground whatever for preferring a pecuniary legacy as the one in the case at bar, to a specific devise. Van Winkle v. Van Houten, 3 N.J.Eq. 172; Meyers, Excr. v. Eddy, 47 Barb. (N. Y.) 263; Van Vliet's Appeal, 102 Pa. St. 574; Davenport v. Sargent, Adm'r, 63 N.H. 538; Hill v. Toms, Adm'r, 87 N.C. 492; Smith v. Carroll, 112 Pa. St. 390; Shallcross v. Finden, 3 Ves. 738; Power v. Davis, Excrs., 3 MacArthur (D. C.) 164.

H. A. Haeussler for respondent Helein.

(1) If personalty is devised to a party as so much money and there is no personalty on hand at death, nor realty not specifically devised, the money legacy fails, and a bequest of a sum of money is a general legacy. Am. Law of Adm., pp. 973 and 987; 13 Am. and Eng. Ency., p. 16; Endees v. Endees, 12 Barb. 362; Brant's Will, 40 Mo. 266. (2) Unless personal legacies are made a charge upon realty, realty can not be sold to pay such legacies. (3) Specific legacies must be first satisfied, and general expressions will not override special directions as to particular specific property. Mersman v. Mersman, 136 Mo. 244. (4) A will must be interpreted according to what is expressed, and no outside declarations or surmises are to be permitted. Mersman v. Mersman, 136 Mo. 244.

BURGESS, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

BURGESS, J.

This case was certified by the St. Louis Court of Appeals to this court on the ground that the amount involved exceeds the jurisdiction of that court, and that its jurisdiction might be questioned on the ground of real estate being involved.

The plaintiff is a legatee under the will of Martha Barbara Lutz, deceased. She died on January 2, 1894. About six weeks prior to her death she made her will, in which she gave various legacies, mostly for religious and charitable purposes, among them $ 500 to a rector to beautify a church, two $ 200 legacies to different priests to be expended for masses for the repose of her soul, $ 400 for St. Mary's Infirmary, $ 100 for the benefit of deaf mutes, $ 400 for the benefit of the Little Sisters of the Poor, $ 400 for the keeping of her grave in repair, $ 2,000 to a sister, or in case of her prior death to the institution with which she was connected, and $ 500 to each of two sisters. There were several other legacies of minor importance. They all amounted to over five thousand dollars.

After providing for these legacies the will proceeds as follows:

"14. After the payment of all my just debts, funeral expenses and foregoing bequests, I give and bequeath all the rest and residue of my personal property, whatever the same may consist of, to my beloved husband, George A. Lutz, as his property absolutely, to have and to hold the same, unto him, and unto his heirs and assigns forever.

"15. I also give, bequeath and devise unto my beloved husband, George A. Lutz, a certain lot of ground, being south part of lot number 23, block 218, fronting twenty-five feet on the west line of South Fourteenth street, including the three-story brick building, known as No. 413 South Fourteenth street, St. Louis, Missouri, erected thereon, as his property absolutely, to have and to hold the same unto him and unto his heirs and assigns forever.

"16. I furthermore give, bequeath and devise unto my beloved husband, George A. Lutz, a certain lot of ground, situated in block number 218 of the city of St. Louis, Missouri, and being lot number twenty-nine, having a front of fifty feet on the east line of Fifteenth street, by 150 feet in depth, situated in Reilly's Addition, as his property absolutely; to have and to hold the same with all the appurtenances thereto belonging to him, my said husband, and unto his heirs and assigns forever.

"17. I furthermore give, bequeath and devise unto my said husband, George A. Lutz, a certain lot of ground, situated in block number 218 of the city of St. Louis, Missouri, being known as lot number 24, in Reilly's Addition," etc., in which latter lot George A. Lutz was only given a life estate and remainder over to George A. Helein. There is no other residuary clause than the one above quoted, and the said George A. Lutz, husband of testatrix, is appointed exector by the nineteenth section of the will.

There was no personalty out of which the legacies could be paid and one of the legatees filed a motion in the probate court to compel the administrator in charge of the estate to sell the realty to pay them, the...