Rinehart v. Rinehart
| Decision Date | 27 January 1925 |
| Docket Number | C. C. 329. |
| Citation | 126 S.E. 402,98 W.Va. 93 |
| Parties | RINEHART v. RINEHART ET AL. |
| Court | West Virginia Supreme Court |
Submitted January 20, 1925.
Syllabus by the Court.
Where a testatrix gives a pecuniary legacy to her sister, to be paid to her within one year from the death of the testatrix without designating out of what part of her estate payment shall be made, and by the residuary clause wills, devises and bequeaths all the "rest and residue" of her property, "real, personal, and mixed, wherever situated" to two other sisters, she thereby manifests an intention to charge the real estate so bequeathed with payment of the money legacy, in the event the personal property should not be sufficient to do so after payment of debts and costs of administration.
Where it is apparent that a testatrix intends that a pecuniary legacy shall be paid out of her estate, the implication is that the residuary devisee or legatee takes, after the satisfaction of the previous pecuniary legacy, where the residuary clause places the real, personal, and mixed property in one fund, and wills, devises, and bequeaths the rest and residue thereof.
Certified Questions from Circuit Court, Marshall County.
Suit by Henrietta Rinehart against A. B. Rinehart, executor, and others. After overruling demurrer to complainant's bill the court certified questions raised on the demurrer. Ruling affirmed.
J. C Simpson, of Moundsville, for plaintiff.
A. E Bryant, of Wheeling, for defendants.
LIVELY, P.
Mary Margaret McGuffie, deceased, in her last will bequeathed a legacy of $1,000 to Henrietta Rinehart, the complainant herein. The latter filed her bill, asking that her general pecuniary legacy be decreed to be a charge upon the real estate devised by the testator in the residuary clause of her will to Agnes Rinehart, one of the defendants herein, and Isabel McGuffie, now deceased. She also asks for an accounting by the executor appointed in said will. A. B. Rinehart, as such executor, and Agnes Rinehart, one of the residuary beneficiaries under the will, demurred to the bill. The demurrer was overruled and the questions raised on demurrer were certified to this court.
The plaintiff in her bill alleges, in substance, that Mary Margaret McGuffie, a sister of the plaintiff, died testate on January 22, 1920, seised of certain real estate and possessed of personal property of the appraised value of $1,602.27; that the will of the said decedent provides as follows:
"I. Mary Margaret McGuffie of Marshall county, West Virginia do hereby make, publish and declare this to be my last will and testament.
Item I.
I direct my executor, hereinafter named, to pa y all of my just debts and funeral expenses.
Item II.
I will and bequeath unto my sister, Elizabeth Holleran, the sum of three hundred dollars ($300.00), to be paid to her by my executor, within one year after my death.
Item III.
I will and bequeath unto my sister, Henrietta Rinehart, the sum of one thousand dollars ($1000.00), to be paid to her, by my executor, within one year after my death.
Item IV.
I will and bequeath unto Mrs. Mary Dashner, John Pitman, Archie Pitman, William Pitman, George Pitman, Robert Pitman, Bessie Pitman and Roe Pitman the sum of ten dollars ($10.00), to be divided equally among them, by my executor, within one year after my death.
Item V.
I will and bequeath unto my brother, Archie McGuffie, the sum of ten dollars ($10.00) to be paid to him, by my executor, within one year after my death.
Item VI.
I will and bequeath unto my brother, James McGuffie, the sum of ten dollars ($10.00) to be paid to him, by my executor, within one year after my death.
Item VII.
I will, devise and bequeath all the rest and residue of my property, real, personal and mixed, wherever situated, unto my two sisters, Isabel McGuffie and Agnes Rinehart, share and share alike.
Item VIII.
I hereby constitute and appoint A. B. Rinehart as the executor of this my last will and testament, he to act as such executor without compensation. I desire that the said A. B. Rinehart shall be permitted to act a s such executor without giving any security.
In witness whereof, I have hereunto set my hand and seal this 1st day of June, 1915.
Mary Margaret McGuffie [Seal.]"
The plaintiff further alleges that the will was duly probated and admitted to record on March 12, 1920, and that on April 13, 1920, the said A. B. Rinehart, named as executor, qualified as such and entered upon the discharge of his duties; that a settlement of the executor, made on March 17, 1922, shows that there is a balance in his hands from the personal estate of said decedent, amounting to $380.41, after having paid the debs, funeral expenses, and costs of administration; that more than one year has elapsed since the death of Mary Margaret McGuffie and the executor has not paid the legacy bequeathed to plaintiff, but refuses to pay the same, giving as a reason therefor that there is not sufficient personal estate with which to pay it, and that he informs plaintiff that the legacies are not charges against the real estate of which Mary Margaret McGuffie died seised. The bill further alleges that there is not sufficient personal estate to pay the legacies; that item VII provides that said legacies shall be a charge against the real, personal, and mixed property of said decedent, and that the said Isabel McGuffie and Agnes Rinehart are residuary legatees of said estate, after all the debts, funeral expenses, legacies, and costs of administration have been paid. The prayer is for a settlement of the executorial accounts; enforcement of the payment of plaintiff's legacy against the real estate bequeathed by the residuary clause, in so far as the personal estate is insufficient, and that defendants Agnes Rinehart and the heirs of Isabel McGuffie, deceased, be enjoined from selling or incumbering the real estate until the further order of the court.
Two of the defendants, A. B. Rinehart, executor, and Agnes Rinehart, filed their written demurrer to the bill, assigning the following grounds for cause of demurrer:
(1) The bill shows, on its face, that there was no intention on the part of the testatrix, Mary Margaret McGuffie, deceased, to charge the real estate devised to Isabel McGuffie and Agnes Rinehart with the legacies provided for in said will.
(2) The bill fails to show that, at the time of the execution of said will, the personal property of Mary Margaret McGuffie was insufficient to pay such legacies.
(3) Said bill is not sufficient in law.
(4) For other reasons apparent upon the face of said bill.
Plaintiff contends that by the provisions of the will, the testator having first provided for the payment of certain legacies, including the sum of $1,000 to the plaintiff, and then in "item VII" aggregated her "real, personal, and mixed" property, giving the residue to Isabel McGuffie and Agnes Rinehart, and the personal property being insufficient with which to pay the legacies, the real estate is charged with the payment of the same, citing Bird v. Stout et al., 40 W.Va. 43, 20 S.E. 852; Lynch v. Spicer et al., 53 W.Va. 426, 44 S.E. 255; and 28 R. C. L. p. 306, § 287, to support this contention.
The defendants argue that an examination of the bill, and particularly paragraph 3 thereof (setting out the will of Mary Margaret McGuffie, deceased), will disclose that there was no intention on the part of said decedent to charge the real estate with the pecuniary legacies; that under the will the only fund out of which the executor could pay the legacies was that derived from the sale of the personal property; that, if the testatrix had intended that said legacies should be paid at all events, or intended to make them a charge upon the realty, she would not have directed her executor to pay them, and to pay them within one year that she must have been under the impression, at the time she made her will, that she had sufficient personal property to take care of such legacies, else she would not have limited the time within which said legacies should be paid, nor would she have directed them to be paid by her executor; that the foregoing, taken together with the fact that the executor was given no control over the real estate, clearly shows testatrix did not intend that the real estate should be subjected to payment of the legacies. Defendant further contends that real estate is not chargeable with the payment of pecuniary legacies, unless the intention of the testator so to charge it is expressed in the will, or such intention appears by implication,...
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