Reynolds v. Reynolds

• Decision Date: 11 April 1906
• Parties: REYNOLDS v. REYNOLDS et al.
• Court: Rhode Island Supreme Court

63 A. 804

27 R.I. 520

REYNOLDS

v. REYNOLDS et al.

Supreme Court of Rhode Island.

April 11, 1906.

Bill by Joseph C. Reynolds, as executor of the will of Horatio N. Reynolds, deceased, against Gardner B. Reynolds and others, to obtain the opinion and instruction of the court in relation to certain provisions of the will. Case remanded, with instructions to enter a decree in accordance with the opinion.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Nathan B. Lewis, for complainant. Gorman, Egan & Gorman, for respondent Abby F. Reynolds. William P. Sheffield, Jr., Max Levy, and William R. Harvey, for respondent Emily H. Rogers.

PARKHURST, J. This bill of complaint is brought for the purpose of obtaining the opinion and instructions of the court in relation to the provisions of the will of Horatio N. Reynolds, late of North Kingstown, in said county, deceased. After certain specific bequests and devises, the testator bequeathed in general legacies the sum of $33,300. The personal estate left by the testator, after payment of debts, exclusive of any claim of Abby F. Reynolds, hereinafter more particularly mentioned, and the payment of the specific legacies, amounts approximately to the sum of $19,000, being insufficient to pay the general legacies in full. The testator, at the time of his death and at the time of making the will, was seised of certain estate not specifically devised, but which would pass to the residuary legatees named in the will but for the deficiency of the personal estate to pay the legacies. A niece by marriage of the testator, Abby F. Reynolds, for several years kept his house and cared for him in his last illness. This niece has several specific bequests and a specific devise of certain real estate, which will more fully appear in the testator's will, and also in the codicil a general bequest of the sum of $5,000, which is declared in said codicil to be in full payment and discharge of claims of every kind which she may have against his estate. The case comes to this court under the provisions of section 338, p. 98 of the court and practice act of 1905.

The questions propounded by the bill are as follows: "(1) Whether or not said real estate above described, which would pass under the residuary devise in said will, were there sufficient personal estate to pay all the legacies in full, can be sold and the proceeds thereof applied to make up the deficiency of the personal estate for the payment of said general legacies. (2) If the court finds that the real estate should be sold for the payment of said general legacies, he desires to be instructed as to the manner of the sale thereof. (3) Whether said second clause of said codicil, giving the sum of $5,000 to Abby F. Reynolds in full settlement of all her claims against said estate, should be treated as a general legacy, which will abate with the other general legacies for want of sufficient estate to pay the same in full, or should be regarded as a direction to pay a debt owed by the said testator to the said Abby F. Reynolds, and be paid in full in preference to the other general legacies."

The provisions of the will and codicil involved in the determinations sought in this case are as follows:

"Second. I give and bequeath to Abby F. Reynolds, widow of my late nephew Francis E. Reynolds, all of my household furniture, including beds, bedding, carpets, pictures, glass, crockery, silver ware and stores, and my pew in the Wickford Baptist Meeting House, and two thousand ($2,000) dollars in cash to her heirs, and assigns forever."

"Fifteenth. I give, devise, and bequeath to my said nephews Gardner B. Reynolds and George Reynolds all the rest and residue and remainder of my estate and estates, both real and personal and mixed, to be divided equally between them, to them, their heirs, and assigns forever.

* * * * * * *

"Sixteenth. It is my will and desire that the two thousand ($2,000) dollars bequeathed to Abbie F. Reynolds in item second be paid to her as soon after my decease as possible, which said; sum of two thousand ($2,000) dollars is given her in lieu of any bill or charge that she may bring against my estate for services rendered for housekeeper or otherwise."

"Codicil.

"Second. Whereas in my said will I have in the second paragraph thereof given to Abbie F. Reynolds, widow of my late nephew Francis E. Reynolds, the sum of two thousand dollars, I now give and bequeath unto said Abbie F. Reynolds the sum of five thousand dollars in lieu of said sum of two thousand dollars and said bequest to be in full payment and discharge of claims of every kind she may have against my estate."

1. In answer to the first question, we are of the opinion that the real estate which passed under the residuary clause of the will (fifteenth) is subject to the payment of the pecuniary legacies in case the personal estate is not sufficient. The rule has been long established, by the course of decisions in this state, that "when there is a bequest of legacies followed by a gift of the residue of the testator's property, real and personal, the legacies are charged on the realty thereby devised." Phillips v. Clark, 18 R. I. 627, 630 29 Atl. 688; Gould r. Winthrop, 5 R. I. 319; Lapham v. Clapp, 10 E. I. 543; Mathewson and Arnold, Pet'rs, 12 R. I. 145; Nickerson v. Bragg, 21 R. I. 296, 43 Atl. 539; Martin, Petitioner, 25 R. I. 1, 18, 54 Atl. 589. And this is the general rule, with few exceptions, in other jurisdictions. Wilcox v. Wilcox, 13 Allen (Mass.) 252, Thomas v. Rector, 23 W. Va. 26; Corwine v. Corwine's Ex'r, 23 N. J. Eq. 368, affirmed in Corwine v. Corwine, 24 N. J. Eq. 579; Stevens v. Flower, 46...