In re Estate of Brackey

• Decision Date: 15 May 1914
• Docket Number: 29,343
• Citation: 147 N.W. 188,166 Iowa 109
• Parties: In the Matter of the Estate of ALF TALLACKSON BRACKEY, deceased, v. L. A. JENSEN, Executor, Appellee ALF BRACKEY, TOBIAS BRACKEY, NEAL BRACKEY, CARL BRACKEY and JOSEPH BRACKEY, Minors, by ALBERT A. BRACKEY, their father and next friend, and ALBERT A. BRACKEY, Appellants,
• Court: Iowa Supreme Court

147 N.W. 188

166 Iowa 109

In the Matter of the Estate of ALF TALLACKSON BRACKEY, deceased,

ALF BRACKEY, TOBIAS BRACKEY, NEAL BRACKEY, CARL BRACKEY and JOSEPH BRACKEY, Minors, by ALBERT A. BRACKEY, their father and next friend, and ALBERT A. BRACKEY, Appellants, v. L. A. JENSEN, Executor, Appellee

No. 29,343

Supreme Court of Iowa, Des Moines

May 15, 1914

Appeal from Winnebago District Court.--HON. J. F. CLYDE, Judge.

ACTION to compel executor to discharge mortgages on property specifically devised, from personal property shown to be in the hands of the executor. Decree in favor of the executor. Applicants appeal.

Reversed.

Senneff Bliss & Witwer, for appellants.

T. A Kingland, for appellee.

GAYNOR J. LADD, C. J., and DEEMER and WITHROW, JJ., concur.

OPINION

GAYNOR, J.

At the time of his death, Alf Tallackson Brackey was the owner of the N.W. 1/4 of section 16, township 99, range 23, Winnebago county, Iowa. This land was incumbered with two mortgages, one given to secure a note of $ 500, dated March 29, 1883, executed by one Thom. Allofson; the other to secure a note of $ 675, dated June 19, 1884. This last note was executed by testator, Alf Tallackson Brackey. These notes were never filed as claims against the estate. Brackey died April 19, 1909, leaving a will, the material provisions of which are as follows:

I, Alf Tallackson Brackey, of the county of Winnebago and state of Iowa being of sound mind and memory and free to act do make, publish and declare this my last will and testament that is to say:

First. I direct that all my just and lawful debts shall be first paid together with all expenses of burial and the expenses of administration upon my said estate.

Second. I give and bequeath unto my beloved son, Albert A. Brackey, the northwest quarter (N. W. 1/4), of section sixteen (16), township ninety-nine (99), north of range twenty-three (23) west of the 5th P. M., Winnebago county, Iowa with all the appurtenances thereunto belonging, for the term of his natural life, and that upon the death of my said son, Albert A. Brackey, then the aforesaid described real estate to descend to his children in fee.

Third. After the legacy of my son for life and his children in fee aforesaid, then it is my wish that the remainder of all my estate both real and personal be equally divided between all of my lawful children including the one getting the specific legacy, then to share and share alike.

Fourth. I hereby nominate and appoint L. A. Jensen, executor of this my last will and testament, and direct that he shall give bond in double the amount of said estate.

This action is brought by Albert A. Brackey, legatee in the will, and his children, against the executor named in the will, L. A. Jensen, for an order directing the executor to pay off said mortgages from the funds in his hands. It appears that, at the time of the filing of this application, there were funds in the hands of the executor sufficient to make the payments. The children of the testator, named in the third cause of the will, appeared and objected to the court's making such an order: First, on the ground that the mortgages had never been filed as claims against the estate, and that the mortgages are not claiming payment of the mortgages from the personal estate of the decedent; second, the mortgages not having been filed as claims against the estate, they are now barred, and no equitable ground has been shown for relief; third, a fair construction of the will shows that this land was devised to the applicants and his children, subject to the incumbrance, and that it was not the intention of the testator that this incumbrance should be paid from the personal estate; fourth, that one of the notes secured by one of the mortgages was not executed by decedent, and is therefore not his personal debt; fifth, that it is the duty of the applicant and his children, therefore, to take care of the mortgages upon the land devised to them; sixth, that Albert A. Brackey is indebted to the estate far in excess of the amount of the mortgages, and the indebtedness due from him to the estate cannot be collected. The application, so far as these mortgages are concerned, was overruled by the court. From this order, the applicants appeal.

The first clause of the will directs the executor to pay all just and lawful debts of the testator; that these be first paid. The will does not differentiate between secured and unsecured debts. The only limitation upon the debts, which the executor is required to first pay, is that they be just and lawful debts. The second note, dated June 19, 1884, was given by the testator for money borrowed from Winnebago county. It was his debt at the time he gave the note, and was his debt at the time of the making of the will, and at the time of his death. True, it was secured by a mortgage upon the land devised to these applicants, but that does not relieve it of its character as debt. The first note did not evidence a debt of the testator. So far as this record shows, he, in no way, assumed any personal obligation for that debt. It was simply an incumbrance upon the land devised. As to the second note, this was his personal debt, and there is nothing in the will itself indicating that it was the intention of the testator that the devisees should pay this debt; that he should be required to pay it rather than any other debt; nothing to indicate that any different course should be pursued in the payment of this debt than would be pursued in the payment of any other debt by the executor.

The doctrine was recognized in Wilts v. Wilts, 151 Iowa 149, 130 N.W. 906. In this case it was claimed that a specific devise was made to the wife, and therefore an incumbrance upon the devised property should be discharged from the personal assets. In that case it was said: "Appellant first contends that the devise to the widow is specific, and for this reason she is entitled to have the indebtedness satisfied from the descended property. The rule has long been established that where real estate has been specifically devised, a devisee, in the absence of a contrary intention on the part of the testator, is entitled to have it exonerated from the mortgage placed upon it by the testator from his personal estate, if adequate, and, if not, from other property of the decedent. . . . If, then, the devise was specific, the widow is entitled to have other property of decedent first resorted to for the satisfaction of the mortgages."

The law places upon the personalty not only the primary duty of paying general debts and legacies, but of exonerating the realty devised from mortgages and other liens of the testator; and so rigorous is this rule that if land be devised expressly subject to a mortgage, the personalty is still primarily liable, and the recourse to the land is only secondary. See Hawk on Wills, 278, 279.

The residuary clause is important to be considered, and furnishes evidence of the intention of the testator, because this disposes of the surplus that remains after satisfying all other conditions of the will. It is natural, then, to presume that the testator intends to charge upon them all the deficiencies, in the other portions of his estate, in paying debts and legacies. Hence arises the rule that debts and legacies, not otherwise effectually or specifically provided for, fall upon the residuary legatees or devisees. The personal estate is a primary fund for the payment of all debts of decedent, and, in order that the personal estate may be relieved, the intention to relieve it must appear affirmatively in the will. This applies to general legacies as well as to debts. As exemplifying this doctrine, see Brown v. Baron, 162 Mass. 56 (37 N.E. 772, 44 Am. St. Rep. 331); Plimpton v. Fuller, 11 Allen 139; Hewes v. Dehon, 3 Gray 205, in which it is held that, in the absence of a contrary intention on the part of the testator, the devisee of specified real estate is entitled to have it exonerated from a mortgage placed upon it by the testator, even though the personal estate is insufficient to pay general legacies.

In Lamport v. Beeman, 34 Barb. 247, the court said: "This case, so far as the defendant Beeman is concerned, must turn wholly . . . upon the question whether it is incumbent upon the executor, or the devisee, to pay the purchase money remaining unpaid, upon the lands purchased by the testator and held by him by contract at the time of his death. It has been repeatedly, and I believe uniformly, held that the heir or devisee could compel the executors or administrators to pay off such a debt for his benefit, out of the assets in the hands of the latter."

In re McCracken's Estate, 29 Pa. 426, it was held that a balance due a vendor, under articles of agreement for the purchase and sale of land, assigned by the vendee to the testator, subject to the payment of unpaid purchase money, is a debt against the estate of the latter, although the testator had entered into no express contract to pay it.

In Turner v. Laird, 68 Conn. 198 (35 A. 1124), the court said: "A specific devise of land, mortgaged by the testator to secure his own debt, prima facie imports an intention that the debt shall be satisfied out of the...