Cooney v. Whitaker
| Decision Date | 16 October 1906 |
| Parties | COONEY v. WHITAKER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C.J. Parkhurst, for appellants.
H. C. Joyner, for respondent.
The question of law presented on this record are very simple. No doubt is suggested as to the jurisdiction of the court to entertain a petition of this kind and make a decree which shall marshal the assets for the proper settlement of the estate. Rev. Laws, c. 162, §§ 2, 3, 5; Lee, Appellant, 18 Pick. 285-289.
There is no dispute that the devise of real estate to the petitioner and her brother, in the first clause of the will, is specific. It is equally clear and undisputed that specific devises and legacies are not to be taken for the payment of a testator's debts until the general legacies and devises are exhausted. Rev. Laws, c. 135, §§ 26, 27; Blaney v. Blaney, 1 Cush. 107-115; Farnum v. Bascom, 122 Mass. 282-286. The only contention of the appellants as a ground for reversing the decree of the probate court is that the devise of real estate to them, in the third clause of the will, is also specific. The language of this clause is as follows: 'To my three sons, Jeremiah M. Broderick, James Broderick and P. H. Broderick, all the remainder of my real estate, to be divided equally between them in three equal shares.'
The English rule that all devises of real estate are to be regarded as specific is not in force in this state. Blaney v. Blaney, 1 Cush. 107-116; Farnum v. Bascom, 122 Mass. 282-286. Under Rev. Laws, c. 135, § 23, land acquired by a testator after the making of his will may pass by the will, as well as that owned by him at the time of making it. The devise in question in this case included all the real estate that the testator might own at the time of his death, except that specifically devised in the preceding clauses of the will. The clause contains no reference to any particular land. We think it plain that the devise is general, and not specific.
It follows that the land covered by it is to be applied to the payment of debts before resort is had to the real estate specifically devised, and that the decree of the probate court should be affirmed.
Decree accordingly.
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