Woonsocket Inst. for Sav. v. Ballou

• Decision Date: 10 November 1888
• Citation: 16 R.I. 351,16 A. 144
• Parties: WOONSOCKET INSTITUTION FOR SAVINGS v. BALLOU et al.
• Court: Rhode Island Supreme Court

16 A. 144

16 R.I. 351

WOONSOCKET INSTITUTION FOR SAVINGS

v. BALLOU et al.

Supreme Court of Rhode Island.

November 10, 1888.

In equity. Bill to charge realty.

James Tillinghast and Francello G. Jillson, for complainant. Nicholas Van Slyck, Cyrus Van Slyck, and George J. West, for respondents.

DURFEE, C. J. This is a suit by the complainant bank to enforce the payment of a promissory note out of real estate devised to the defendants, Stephen W. Ballou, Charles H. Ballou, and Osborn J. Ballou, by their father, Warren J. Ballou, late of Cumberland, deceased. The will of Warren J. Ballou gives —First, a legacy of $4,000 to his wife; second, to his daughter, Nancy Clark, all notes, demands, or accounts due the estate from her husband; third, to Davis Cook $4,000 in the stock of the Cumberland National Bank, belonging to the testator, in trust for his said daughter for life, with remainder to her issue, etc.; and, fourth, the residue of his estate, real and personal, to his three sons, who, together with Ellis L. Blake, administrator with the will annexed, of the estate of Warren J. Ballou, are the defendants, in manner following, to-wit: "I give, devise, and bequeath to my sons Stephen W. Ballou, Charles H. Ballou, and Osborn J. Ballou, jointly and in equal portions, all the rest and residue of my real and personal estate of every kind and nature, and wheresoever situated or lying, to be and remain to them, their issue, descendants and heirs, forever; they paying out of the same all my just debts, funeral charges, and expenses of settling my estate;" with provisions over, in case of the death of either of said sons without issue during the testator's life-time. It is real estate passing under this clause which the bank seeks to reach, claiming that the devisees hold it under said clause subject to a charge or trust for the payment of the testator's debts. The note which is the ground of suit is in the words and figures following, to-wit:

"$5,000.

WOONSOCKET, R. I., January 1, 1869.

"On demand, for value received, we, Rankin, Wood & Co., as principal, and Warren J. Ballou and Wm. H. Andrews, as sureties, jointly and severally promise to pay, to the order of the Woonsocket Institution for Savings, five thousand dollars, with interest at seven per centum per annum, payable semi-annually, in advance, at bank.

[Signed]

"RANKIN, WOOD & Co., Principals.

"WM. H. ANDREWS.

"WARREN J. BALLOU."

Warren J. Ballou died April 1, 1876. Interest on the note was paid semi-annually by Rankin, Wood & Co., until 1878, and subsequently by the defendant Ellis L. Blake, as administrator with the will annexed. The bill alleges that the payments by Blake were made out of assets in his hands with the knowledge and consent of the residuary devisees, but this the devisees deny, and the testimony is contradictory. The bill alleges that the defendants claim that the personal assets have been exhausted by the payment of debts and legacies, and the expenses of settling the estate, and the answer of Ellis L. Blake affirms that said assets have been so exhausted. Three defenses are set up by the defendants in their answers and briefs, on which the case has been argued, to-wit: First, the charge on the residuary real estate is inoperative, being a repetition of the statutory charge; second, the claim as against Warren J. Ballou was barred in his life-time by the statute of limitation; and, if not, third, it has been barred since his decease, more than six years having since elapsed before this suit was brought. We will consider the defenses in their order.

Sec. 2. The personal estate shall stand chargeable for such expenses, charges, and debts in the first instance, and the real estate for all the same which the personal estate shall be insufficient to satisfy, unless the deceased has otherwise directed by bis last will and testament. Appeal, 11 Atl. Rep. 455; Steele v. Steele, 64 Ala. 438, 460; Sands v. Champlin, 1 Story, 376. The will here gives, first, $4,000; then certain choses in action; then $4,000 in bank stock; and, finally, the residue real and personal to his three sons, "they paying out of the same all my just debts," etc. The charge is clear and direct, and closely resembles the charge in Smith v. Wyckoff, supra, in which the court held that it was competent for the creditors to come directly into court to obtain satisfaction, though they might have had a perfect remedy at law against the personal estate in the hands of the executors. In Gardner v. Gardner, supra, the deceased gave his son by will two-thirds of a certain farm, and two-thirds of certain personal estate, he "paying all my just debts out of said estate;" and the court held that not only the devisee personally, but the estate also, was charged, and might be reached in the hands of the devisee, or of any person claiming under him who was not a bona fide purchaser for value. Judge STORY, replying to a suggestion that it would not comport with the statute to give the charge any effect, said: "The statute creates a general charge only in favor of the creditors. It does not prohibit the testator from making a particular provision or appropriating a particular fund exclusively for the payment of his debts, which shall bind his heirs and devisees. * * * And when he creates a particular fund for the payment of his debts, and exonerates all the rest of the estate from the payment of his debts, as to all other persons except his creditors the fund becomes exclusively appropriated for the purpose, as much so as if he had devised it on special trust. * * * The general liability of the real estate to the payment of debts created by operation of law does not destroy the specific charge for the same debts." And the supreme court of the United States, in Potter v. Gardner, Chief Justice MARSHALL delivering the opinion, said: "A testator cannot, by his will, withdraw from his creditors any property which the law subjects to their claims, but he may provide a particular fund for his debts, and, if the creditors resort to a different fund, those to whom the property so taken by them was given are entitled to compensation out of the fund provided for debts." It may be questioned whether, under our statute, property which is expressly charged does not...