Dean v. Rounds

• Decision Date: 12 July 1893
• Citation: 27 A. 515,18 R.I. 436
• Parties: DEAN et al. v. ROUNDS et al.
• Court: Rhode Island Supreme Court

27 A. 515

18 R.I. 436

DEAN et al.

v. ROUNDS et al.

Supreme Court of Rhode Island.

July 12, 1893.

Bill by Calvin T. Dean and others against Thomas M. Rounds and others to construe a will, and to establish a claim to a legacy.

James Tillinghast and Theodore P. Tillinghast, for complainants.

Isaac H. Southwick, Jr., for respondents.

TILLINGHAST, J. The third clause of the will of Mary S. Rounds is as folows: "All moneys or legacies coming to me from any source I give and bequeath to my brother and sister, including my stepson, Walter B. Rounds, to be divided equally, to share and share alike." And the first question raised is whether or not said clause creates a specific legacy. We do not think it does. A "specific legacy," as the term imports, is a gift or bequest of some definite specific thing, something which is capable of being designated and identified. 1 Rop. Leg. 190; Case of Walker's Estate, 3 Rawle, 229, 237; Bradford v. Haynes, 20 Me. 105; 2 Woerner, Adm'n, § 444, and cases cited. Had the bequest been of "all moneys or legacies coming to me from my father," "of all legacies coming to me under the Dean will," "of all the furniture belonging to me, in my house at A.," (see Derby v. Derby, 4. R. I. 414, 432,) it would doubtless have been a specific legacy, (Gelbach v. Shively, 67 Md. 498, 10 Atl. Rep. 247; Gardner v. Printup, 2 Barb. 83, 85; Tomlinson v. Bury, 145 Mass. 346, 14 N. E. Rep. 137.) But there is certainly nothing which strikes one as particularly specific in the phrase "all moneys or legacies coming to me from any source." At any rate, it is not clear from the language used that the testator intended to create a specific legacy; and the rule is that a legacy should not be construed as specific, unless clearly so intended. Wallace v. Wallace, 23 N. H. 149, 153, and cases cited; Briggs v. Hosford, 22 Pick. 289. This being so, the defendant Thomas M. Rounds, as administrator with the will annexed on his wife's estate, is entitled to have and receive from the defendant Zechariah Chafee, trustee under the will of Calvin Dean, all moneys or legacies in his hands which belonged to the testator, and which would have come to her in her lifetime had she survived Julia Ann Maker, the life tenant under the will of Calvin M. Dean. Chafee v. Maker, 17 R. I. 739, 741, 24 Atl. Rep. 773. The question which arises in this connection, then, is as to the amount which said administrator is entitled to receive from said trustee.

We are still of the opinion, as expressed in Chafee v. Maker, that said trustee is entitled to retain out of the legacy of $3,000 bequeathed to said Mary S. (Dean) Rounds, under the will of said Calvin Dean, the amount of the note of said Thomas M. Rounds and Mary S. Rounds, for $1,500, and the amount of the note of said Thomas M. Rounds, indorsed by said Mary, for $117.50, which notes are now held by said Chafee as part of the trust estate under the will of said Dean. The proof submitted shows that said Chafee, under an arrangement with said Mary, became the purchaser at the foreclosure sale, under the mortgage given by said Thomas M. Rounds, of the Kingston farm, as a voluntary purchaser, for the ultimate benefit of the trust estate, and in no other way or manner; that said Chafee paid for said farm the sum of $1,545, and took a deed thereof; that he thereupon, at the request of said Mary, deeded the same premises to her, and that said Thomas and Mary thereupon mortgaged said premises to said Chafee, trustee, to secure the payment of their promissory note for the sum of $1,500, payable one year after date, with interest at 6 per cent. per annum; that the said note for $117.50 is the tail end of a note of $1,000, which latter sum said Mary borrowed from said trust estate, before her marriage to said Thomas M. Rounds, said note being signed by her husband solely for her accommodation, and to enable her to adjust her accounts with said Chafee at the time of the purchase by her of said farm; and that said note for $1,500 was given for the sole purpose of enabling the said Mary to become the purchaser, in her own right, of said farm, and as a part of the purchase price to be paid therefor. In brief, the proof shows that the transaction was substantially this: Thomas M. Rounds owned a farm, which was subject to a mortgage in the sum of $2,000, given by him. He was unable to pay the amount due on the same, or even the interest thereon, and the result was a foreclosure sale by the mortgagee. At this sale said Chafee, under an arrangement with said Mary that she should have the same, became the purchaser of said farm, using a part of the trust funds in his hands which would ultimately come to her in the making of said purchase. That said farm was then deeded to said Mary by Chafee, in pursuance of said previous arrangement with him. That she well knew at that time of the legacy of $3,000 which was coming to her under said Dean's will, on the death of Julia Ann Maker, and that, to enable her to give a mortgage back for the purchase price of said farm, it was necessary for her husband to join therein, and to sign the mortgage note, which he did, but for her sole benefit and accommodation. Of course, he thereby became personally liable to pay said mortgage note, and so remains, the same not having been paid; that is, as between him and said trustee, he assumed the legal liability of paying for property which became and was the absolute estate of his wife, not by way of advancement, but simply for her accommodation, while, as between him and his wife, he assumed the liability of paying her debt, which was one that arose out of a contract that the statute expressly authorized her to make, and made her and her legal representatives responsible for. See Pub. St. R. I. c. 166, § 4. If, therefore, said mortgage note is paid by him, his wife's estate will honestly and justly owe him the amount thereof. If he pays said other note for $11750, he will thereby pay a debt which was legally hers when contracted, the original note having been given by her while sole, and which was equitably hers at the time of her decease, the original having been paid in part by her, and taken up after her marriage, and a new one given, signed by her and her husband, for the balance due.

The trustee has in his hands said legacy of $3,000, and interest thereon, which, not being a specific legacy, as hereinbefore determined, belongs, in the first instance, to the administrator with the will annexed, to be used, so far as necessary, in the payment of the debts of the testator. Now, why should not the amount of said notes be offset by the trustee against said legacy, in his settlement with the estate of Mrs. Rounds? Suppose Mrs. Rounds had outlived Julia Ann Maker, the life tenant of said legacy. Could she have equitably claimed from said trustee the full...