Hogg v. Browning

• Decision Date: 18 November 1899
• Citation: 47 W.Va. 22,34 S.E. 754
• Parties: HOGG. v. BROWNING et al.
• Court: West Virginia Supreme Court

34 S.E. 754

47 W.Va. 22

HOGG.

v.BROWNING et al.

Supreme Court of Appeals of West Virginia.

Nov. 18, 1899.

WILLS—LEGACIES—CHARGE ON LAND.

1. Though legacies do not stand upon as high ground as debts, yet, if the personal fund be inadequate, or if there are expressions in a will tending to show that the testator had the land in his mind for their payment, they are a charge on the land devised.

2. Whether legacies are a charge on land devised is a question of intent of the testator.

3. Realty is not chargeable with legacies unless the intent to charge it is expressed in the will, or appears by implication from it.

(Syllabus by the Court.)

Appeal from circuit court Brooke county Joseph R. Paull, Judge.

Action by Abba E. Hogg against Henry Browning and others. From the decree, complainant appeals. Affirmed.

W. W. Arnett and Palmer & Palmer, for appellant.

R. H. Cotton, for appellees.

BRANNON, J. Abba E. Hogg, widow and sole legatee and devisee of William Hogg, deceased, and executrix of his will, brought a chancery suit in the circuit court of Brooke county, in her own right and as executrix, against Hannah Browning and others, stating in her bill that her husband died considerably indebted, owning certain lands, and that it would be necessary to sell some of the lands to pay his debts, and that she was sole devisee under his will of those lands, and stating that among the debts was one arising out of a legacy given by George Hogg's will to Hannah Browning and her children, of $2,800, which, with other legacies, George Hogg's will directed to be paid by his three sons, William, George W., and John F. Hogg; and the bill stated that it was suggested that this legacy, in addition to being a personal debt upon William Hogg, was by reason of the will of his father a charge on the land devised to him; and the bill asked that the will be construed, and that the court determine whether the Browning legacy was a charge, and that the debts of her husband be ascertained, and the land be sold, giving her her rights as widow. The court decreed that Hannah Browning's legacy was a charge, under her father's will, on the land by it given to William Hogg, for his portion of it, having preference over other debts, and the dower of Abba E. Hogg as widow of William Hogg, and giving her a gross sum for dower after payment of liens. She appealed from this decree.

The only question of any import in the case is whether the Browning legacy is a charge on the land. The will of George Hogg, Sr., does not in words charge it, but I think it clearly does so by implication. The law as to charge of legacies on land, as expounded by the Virginia and West Virginia cases, is very well settled. "Real estate is not chargeable with pecuniary legacies, unless the intention so to charge is expressed In the will, or such intention appears by implication." McGlaughlin v. McGlaughlin's Legatees, 43 W. Va. 226, 27 S. E. 378; Thomas v. Rector, 23 W. Va. 26. "Whether legacies are a charge upon real estate is a question of intention on the part of the testator." Read v. Cather, 18 W. Va. 263. Downman v. Rust, 6 Rand. (Va.) 587, lays down that if "the personal fund be inadequate, or there be expressions in a will tending to show that the testator had the land in his mind, the court will make them [legacies] a charge on the land, rather than they shall go unpaid." 2 Lomax, Ex'rs, 90, 171, says: "Roper, after reviewing the cases in which legacies were charged by implication, has observed that they afforded solid ground for inferring the intention of the testator to charge the real fund or its produce with legacies, in aid of the personal estate. The real property was devised, and there were expressions connected with that devise which afforded a reasonably plain inference that the land or its produce should be taken subject to legacies. But where the intention to subject the real estate to legacies is merely probable or conjectural, and there are no expressions to charge, except such as are capable of being otherwise satisfied, a court of equity will not, on conjecture or private persuasion, affect the real estate with payment of legacies. Where, Indeed, an unprovided child or creditors are the persons endeavoring to establish the charge, the court will Incline in their favor, If the inference of intent to charge be dubious; but, where the question is between mere voluntary legatees and the heir or the devisee, the court will require satisfactory conviction of the intent to charge the realty with...