Daiss v. Hanes, 12010.

• Decision Date: 01 April 1929
• Docket Number: 12010.
• Citation: 85 Colo. 397,277 P. 5
• Parties: DAISS v. HANES.
• Court: Colorado Supreme Court

277 P. 5

85 Colo. 397

DAISS v. HANES.

No. 12010.

Supreme Court of Colorado, En Banc.

April 1, 1929

Rehearing Denied April 22, 1929.

Error to District Court, Douglas County; Arthur Cornforth, Judge.

Action by Rosa Hanes against Adam Daiss and another. Judgment for plaintiff, and defendant Daiss brings error.

Affirmed.

John W. Helbig, of Denver, for plaintiff in error.

Chester E. Smedley, of Denver, for defendant in error.

CAMPBELL J.

Rosa Hanes, legatee in the will of John P. Varner, deceased brought this action against Orrien S. Varner, residuary legatee and devisee, and Adam Daiss his grantee, to have her unpaid legacy of $1,000 and interest made a charge upon a tract of farm land, part of the residuary estate of testator which, by the residuary devisee, had been conveyed to Daiss. The trial court rendered the decree prayed for, and Daiss alone prosecutes this writ of error.

Clause 1 of the will gives a legacy of $500 in money to a church organization. Clause 2 gives to the plaintiff Hanes, a niece of testator, a money legacy of $2,000 to be paid out of the estate in four equal installments of $500 each; the first payment to be made two years, the second four years, the third six years, the fourth eight years, after testator's death; the entire bequest of $2,000 to bear interest at the rate of 6 per cent. from date of the testator's death. Immediately following these two separate general legacies is the residuary clause reading 'I give and bequeath all the rest, remainder and residue of my estate, whether real or personal, including my farm of Three Hundred and Sixth (360) acres, lying on Cherry Creek, three miles south of Parker, in the County of Douglas, in the State of Colorado, to my son, Orrien S. Varner.'

The first two payments of $500 each of the legacy of the plaintiff Hanes have been paid, and this action concerns only the last two, agregating $1,000 and interest, which have not been paid. The plaintiff in error has filed six separate assignments of error. Some of them are bad, in that they do not particularly specify the errors complained of as our rule 32 requires. The action is predicated on the theory that, where, as here, there is a blending in the residuary clause of the real and personal estate of the testator, prior pecuniary legacies in the will are chargeable on both the realty and the personalty.

Defendant first contends that the devise of the farm in the residuary clause of the will is a specific, not a general, devise. He cites, among other cases, Nusly v. Curtis, 36 Colo. 464, 85 P. 846, 10 Ann.Cas. 1061. It is not in point, for the devise there considered was not included in the residuary clause where, as here, realty and personalty are blended. Other cases relied upon by defendant are Johnson v. Poulson, 32 N.J.Eq. 390, and Brill v. Wright, 112 N.Y. 129, 19 N.E. 628, 8 Am.St.Rep. 717, and other New York cases. These New York cases, commentators have said, are in a class by themselves, and are not followed in the other states of the Union. The Poulson Case from New Jersey seems not to be in accord with later New Jersey cases, but, if it tends to support defendant's contention here, it is to be classed with the minority holdings. We shall consider some of the leading cases.

In Markley's Estate, 148 Pa. 538, 24 A. 75, the doctrine of the Poulson Case is rejected. In Bristol v. Stump, 136 Md. 236, 110 A. 470, was considered a residuary clause almost identical in language with the case in hand. It reads: 'I give, devise and bequeath all the rest and residue of my estate, real, personal and mixed, including my farm called 'Waverly,' to my nephew * * * and his heirs forever.' The court in speaking of this clause said: 'The enumeration of property in a residuary clause of a will in general terms does not constitute the legacy or devise a specific one.' To the same effect is the Estate of Painter, 150 Cal. 498, 89 P. 98, 11 Ann.Cas. 760. In Lewis v. Darling, 21 Curt. U.S. Sel. Cas. 1 (16 How. 1, 14 L.Ed. 819), the court there says, as stated in the syllabus: 'Whether a legacy is chargeable on real estate depends upon the will of the testator, and if he has blended his realty and personalty into one fund, for this purpose, it is not necessary first to exhaust the personalty before resorting to the realty.' The court adds: 'The rule in such a case is, that where a testator gives several legacies, and then, without creating an express trust to pay them, makes a general residuary disposition of the whole estate, blending the realty and personalty together in one fund, the real estate will be charged with legacies, for in such a case, the 'residue' can only mean what remains after satisfying the previous gifts.' The court further says: 'Nor does this conflict at all with that principle of equity jurisprudence, declaring that generally the personal estate of the testator is the first fund for the payment of debts and legacies. The rule has its exceptions, and this is one of them.'

In 3 Woerner, American Law of Administration (3d Ed.), at page 1545, the author says: 'But if the testator, in the residuary clause, treats the real and personal property as forming one whole, without distinguishing the one from the other, he is presumed thereby to manifest an intention to charge the general legacies upon the land, because 'residue' in such case can only mean what remains after satisfying the former gifts.' And while it is true that general legacies may not always be chargeable upon real estate merely because they are devised in the residuary clause, yet the fact that they are included in the residuary clause is of great weight as indicating the testator's real intention. Rinehart v. Rinehart, 98 W.Va. 93, 126 S.E. 402, 42 A.L.R. 649, is a strong case in favor of the plaintiff. In Reel's Estate, 266 Pa. 221, 109 A. 845, the testatrix, after making a number of bequests, blended her whole estate in the residuary clause. The court said that her lands thereby became bound by necessary implication for the payment of the legacies, for what the rest and residue of the estate will be cannot be ascertained until the debts, legacies, and expenses of administration are paid. In Ann.Cas. 1914D, page 33, the author says: 'By the weight of American authority a residuary clause is general as to realty passing thereby.'

Our conclusion is that the devise of this farm was not specific but general, and that the legacies preceding the residuary clause did not abate. We might well here conclude this opinion with the statement that plaintiff's entire case rests upon this one general assignment just determined, that the devise in this will of the farm land is specific, not general. Whatever might be our decision as to the eight or more separate defenses of the answer, aside from the character of the residuary devise, would not change the result, since the remaining assignments just referred to depend for solution on the character or effect of the residuary devise; that, is, if it is general and not specific, as we have held, it did not abate, and so the residuary devise is charged with payment of the general legacy. We have concluded, however, as briefly as possible, to pass upon such of the other assignments as, on the surface at least, have some semblance of merit.

The defendant contends that even under the theory of a residuary clause the personal property of the estate...