In re Cooper's Estate
| Decision Date | 24 September 1846 |
| Citation | 4 Pa. 88 |
| Parties | In re COOPER'S Estate. |
| Court | Pennsylvania Supreme Court |
The only effect of a settlement of administration account in the Orphans' Court is to show the balance of assets in the executor's hands after payment of debts and charges. It can have no effect on the question as to the amount due to a legatee. Foulk v. Brown, 2 Watts, 214.
An executor will not be permitted to settle an account for the mere purpose of charging the estate with a debt due to himself by the testator in his lifetime. 5 Watts, 84; 1 Watts & Serg. 208.
A conveyance by the testator in his lifetime, of only a part of the estate devised in his will, is but a revocation pro tanto, and furnishes no reason why there should not be a probate of the will. Hawes v. Humphrey, 9 Pick. 350; Brush v. Brush, 11 Ohio, 287; Carter v. Thomas, 4 Greenl. 341; Skerrett v. Burd, 1 Wharton, 246.
Here the testator in his lifetime sold the house and lot, and by his own act revoked his will pro tanto.
Admitting for a moment that he had not sold this house, could they have permitted this house to remain unsold, and paid any part of the legacies out of the personal assets.
He directs the house to be sold, and "the proceeds of which are to be disposed of in the following manner;" thereafter specifying the legacies to be paid out of the proceeds, he says, "and the residue or balance of my property, after the payment of the above legacies, real, personal, and mixed, I leave to my wife," &c.
Is it not his plain meaning, that his wife and two daughters were to get the residue of the proceeds of the sale, and all his other estate.
In the estimation of the testator, the house was sufficient to pay his debts, and the legacies and residue were to go to the wife, &c.
Wills, for the appellees.—1. The legacies in this case are not specific, but specific-general — a mixed class, partaking of the qualities of specific and general legacies; both being specific so far as they are primarily payable out of a particular fund; and general so far as they are ultimately payable out of the estate at large, on a total or partial failure of the particular fund. 1 Roper on Leg. 150, 153, 154, 166, 172, 173, 181, 182. They are not specific, because the land itself is not devised; it is only looked to as a source of payment. 1 Roper on Leg. 150, 151, 153, 178, 179. On the contrary, they are pecuniary, having none of the attributes of specific legacies. 3 Rawle, 237. A sum of money bequeathed out of particular stocks or annuities, is primâ facie a general, that is, a specific-general legacy; liable, however, to be considered specific when a clear instruction to that effect appears from other parts of the will. 1 Roper on Leg. 168. The intention to create specific legacies must be clear and manifest, as they are not favoured in the law. 1 Roper on Leg. 155, 156, 159, 163, 164, 167, 173, sec. 1. Courts of law and equity both lean to the construction that legacies are general, or specific-general, rather than specific. 1 Roper on Leg. 178; 3 Watts, 339; 3 Rawle, 238, 239. But there is no such intention in this case. On the contrary, the testator gives the balance or residue of his property to his wife in the first instance, and afterwards to his two daughters, Elizabeth and Jane, as residuary legatees after the payment of these legacies.
2. If not specific, then they do not fail by a failure of the modus of payment; but are payable out of the general estate of the testator. 1 Roper on Leg. 181, and cases there cited. 6 Watts, 483, 484.
3. Apart from a consideration of the character of these legacies, there is another view of this case equally...
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Estate of Taylor
...testator's estate at the time of death, an ademption results." 456 Pa. at 323, 319 A.2d at 895-96 (footnote omitted). See also Cooper's Estate, 4 Pa. 88 (1846). Similarly, Pennsylvania common law of ademption did not recognize a right in the beneficiary to a purchase money mortgage which th......
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Estate of Taylor
...testator's estate at the time of death, an ademption results." 456 Pa. at 323, 319 A.2d at 895-96 (footnote omitted). See also Cooper's Estate, 4 Pa. 88 (1846). Similarly, the Pennsylvania common law of ademption did not recognize a right in the beneficiary to a purchase money mortgage whic......
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...N. W. 293), it was held flatly that a conveyance by a testator of all his property after executing his will revokes it. In Re Cooper's Estate, 4 Pa. 88, 45 Am. Dec. 673, the testator had not disposed of his entire estate. But enough was gone to make it "impossible to execute the will accord......