Hoes v. Van Hoesen

1 Barb. Ch. 379, 1846 N.Y. LEXIS 303

Opinion

The Chancellor.

If the vice chancellor was right in supposing that the releases were invalid, and that the legacies were not primarily chargeable upon the interest of the testator in that part of the personal estate which was not disposed of, by the will, after the termination of the widow’s life estate therein, the decree is wrong as to the portions of the unbequeathed interest to which the complainants are entitled. Where a reversionary interest in personal property is not disposed of by the will of a testator, it does not necessarily belong to those who may happen to be his next of kin at the termination of the particular estate or interest in such property, which is bequeathed by him. But, as an interest in property undisposed of by the will, it belongs to the widow and next of kin of the decedent, who were entitled to the distributive shares in such unbequeathed interest at the death of the testator. And if any of them have died without having disposed of their interests therein, their shares go to their personal representatives, as a part of the personal estate of such decedents. Here, if there was an interest in the personal property undisposed of, one third of that interest belonged to the widow of the testator; and her executors or administrators alone can call upon the defendant for the payment thereof

Again; the widow being entitled to one third of the reversionary interest, if any there was, in the personalty not disposed of by the will, in addition to her life estate in the whole personal property beyond what was necessary to pay the debts and funeral expenses of the testator, she was, immediately upon his death, the absolute owner of the one third of the personal property; except that part thereof which was bequeathed to the two sons of the testator, after her death or remarriage. She might, therefore, with the assent of the executors, dispose of that third of the residuary property in any manner she pleased. And it appears by the answer of the defendant, that she did, long before her death, relinquish her interest in such residuary property; and consented that it might be applied by him to the payment of the legacies. And it was appropriated accordingly. This statement in the answer, is also responsive to that part of the bill which called upon the defendant to answer and discover what property the testator owned at the time of his death, and xvhat disposition had been made of the same. And for the purposes of this suit, it must be taken to be true. The complainants, therefore, could not, in any viexv of this case, be entitled to more than two sixths of two thirds of the residuary estate; xvith interest thereon from the death of the xvidoxv. And if she died intestate, and they wish for an adjustment of the accounts between the defendant and her estate, they must take out letters of administration, and make their claims against him in the character of her personal representatives.

The release executed by Mrs. Hoes, before her marriage, appears on its face to be valid and effectual to extinguish all claim which she then had, or might thereafter have, against, the executors, or against the defendant, for or on account of the personal estate of her deceased father. And her interest in the personal estate after the-death of the xvidoxv, if she had any such interest, xvas absolutely vested in her immediately upon the death of her father; although it could not vest in possession during the life and xvidowhood of her mother. It was therefore an interest which she could release at any time; and was extinguished by the release of December, 1818, if that release xvas not obtained fraudulently or unfairly. It is unquestionably the general rule that if there is a particular recital in a release, and nothing appears on the face of the instrument to show that any thing beyond the matter of such recital was intended to be discharged, general words of release following such recital will be qualified by the recital; so as not to discharge other claims which were not in the contemplation of the parties. (Knight v. Cole, 1 Show. Rep. 150. Ramsdell v. Hylton, 2 Ves. sen. 310. Lyman v. Clark, 9 Mass. Rep. 235.) But the construction of the re-' lease must depend upon the language of the instrument itself; and extrinsic evidence cannot be resorted to for the purpose of showing the intention of the party by whom such release was executed. (Butcher v. Butcher, l New Rep. 113. Van Brunt v. Van Brunt, 3 Edw. Ch. Rep. 14.) In this case, the release, upon its face, does not appear to be limited to the claim for the legacy. On the contrary, the release contains a nominal consideration, in addition to the amount of the legacy; and for that consideration in addition to the payment of the legacy and interest, she declares that she has received her full share and proportion of the real and personal estate of her deceased father. And she not only' releases the devisees, who are personally! charged with the'payment of the legacy, but also the executors and executrix, of and from all claims which she had, or might have, in or to any part of the estate. The answer, which is responsive to the bill in reference to the charge that the release was obtained by fraud and circumvention, also shows that it was in pursuance of a family arrangement. By such arrange-ment, the widow consented that the personal estate, in which she had a life interest, and in which property the reversion was not specifically disposed of, should be appropriated as a fund for the payment of these legacies. And Maria agreed to receive her legacy and to execute to the devisees, and to the executors, a full and absolute release of all claims upon the real or personal estate. As the complainants chose to call- for the defendant’s answer, on oath, in relation to the alleged fraud in obtaining these releases, instead.of attempting to prove the same by witnesses, or of calling upon the subscribing witnesses to prove the circumstances under which such releases were given, the defendant is entitled to the full-benefit of his answer, in explaining those circumstances, to rebut the charges of fraud and imposition contained in the bill. It is also proper to observe that there is no admission in the answer that the defendant was advised, by his professional friends, that the daughters would be entitled to their distributive shares in the personal estate after the death of the widow; though I infer from the defendant’s answer, and from the fact that he was advised to take releases to prevent future difficulty, that he had been informed the will might bear such a construction. But the principal point in which the will was supposed to be different from the actual intention of the testator, was in not appropriating the moneys at interest, and other personal property not fully disposed of by the will, to the payment of the legacies during the life of the widow; instead of charging them upon John and George personally, without furnishing them any means of payment during the life of the widow, except by sacrificing the whole of their future interest in the farm and stock and farming utensils. . None of the parties claiming under the will had a right to prove a mistake therein, for the purpose of altering their respective interests in the testator’s estate, or of giving a different construction to its provisions. But if the members of this family were satisfied, from the information of those who were present when the.directions for drawing it were given, that such a mistake had occurred, that circumstance might account for the giving of these releases without any actual consideration therefor; and would be a strong circumstance to rebut the presumption of fraud in obtaining them.

I infer from the expression in the release of Hager, reciting that it was given in consideration of §700 theretofore paid him by the defendant, and from the allegation in the bill that the legacy was paid a long time before the death of the widow, that the release executed by Hager was not in fact given at the time the legacy was paid; but that it was subsequently executed. If so, it would corroborate the defendant’s allegation, in the answer, that previous to the payment of the legacy Hager had agreed to receive the same, and to execute a full and absolute release of all claims upon the real and personal estate of the testator; and that the release was subsequently executed in pursuance of his previous agreement. But as the release was actually executed before the death of the mother, it may admit of some doubt, from the conflict of authorities on the subject, whether the language of the release was sufficient to reach a then vested interest in personal property, but which interest could not be reduced to possession during the life or widowhood of the testator’s widow. It therefore becomes necessary to examine the question, whether these legacies were chargeable exclusively upon the devisees, and upon the property specifically devised and bequeathed to them in remainder after the death or remarriage of the widow, in exoneration of the supposed reversionary interest in the personal estate undisposed of by the will; or whether such reversionary interest was the primary fund for the payment of such legacies.

I agree with the present Lord Chancellor of Ireland, that the soundest and most sensible rule of construction, both as to debts and legacies, would have been, that if there are express words of dedication of a portion of the real estate for the payment of debts or legacies, and the testator has disposed of all his personal estate specifically, the fund which the testator has himself provided for the purpose should be deemed the primary fund. The current of the authorities, however, is certainly the other way so far as relates to the payment of debts, at least. (Fereges v Robertson, Bunb. Rep. 301. Waller v. Jackson, Idem, 303, n Aldridge v. Lord Wallscourt, 1 Ball Beatty, 312. Ancas ter v. Mayer, 1 Bro. C. C. 460. Stephenson v. Heathcote 1 Eden's Rep. 38. Howe v. Dartmouth, 7 Ves. Rep. 149 Watson v. Birchwood, 9 Idem, 447. Bootle v. Blundell, 1 Mer. Rep. 193.) It is also the general rule that the personal estate is the primary fund for the payment of legacies, although such legacies are charged upon real estate; whether such real estate be devised with a direction to the devisee to pay the legacies, or is charged with such legacies, or given to trustees for that purpose. (See 1 Roper on Leg. 163, and cases there referred to.) But in reference to legacies, an absolute disposition of all the personal estate of the testator, and not a mere residuary bequest, is sufficient to manifest the intent of the testator to charge the realty, in exoneration of the personalty. Thus in the case of Kelsey v. Deyo, (3 Cow. Rep. 133,) where the testator bequeathed his whole personal estate, after payment of debts, to his wife for life, with remainder to all his children at her death; and then devised all his real estate to his son N. in fee, subject to certain privileges -therein in favor of the widow; and directed him to pay certain legacies, one half thereof in two years after the testator’s death and the other half in two years after the death of the widow; and made the devisee and other persons executors; the supreme court held that .it was manifest from the will that he meant to exonerate the personal estate. But in the subsequent case of Tole v. Hardy, (6 Cow. Rep. 333,) where the testator directed that his widow should be maintained out of his estate, and that she should have all his furniture <fcc., and then devised his real estate to his son in fee, and directed him to pay certain legacies, and appointed the widow yexecutrix and the devisee the executor of the will; the same court held that the personal estate, not specifically bequeathed, was not exonerated, and was the primary fund for the payment of the legacies; although the devisee was also charged with the payment, in respect to the land devised to him. And I have not been able to find any case, where the personal estate was not in terms exonerated, or the legacies declared to be chargeable upon the real estate exclusively, in which an interest in personal property not disposed of by the will was held to be exonerated. On the contrary, it appears to be settled that where the personal estate is in terms exonerated, for the benefit of a particular legatee, and not for the benefit of such estate generally, the failure of the particular bequest destroys the exoneration pro tanto. (Ward’s Law of Leg. 357.)

It is not necessary to express an opinion upon the question, whether the life interest of the widow in the part of the personal estate not disposed of by the will, in the present case, was in fact exonerated from the payment of the four legacies, to the testator’s son Lambert and to the three daughters. But upon an ex- animation of the • decisions of the courts, both here and in England, I am satisfied that the reversionary interest in a part of the personal estate, which interest was not disposed of by the will, was the primary fund for the payment of those legacies; and in aid of the charge upon the farm, and upon the reversionary interest of the devisees in the stock and farming utensils. And as the personal property not disposed of by the will, was wholly insufficient to pay these legacies, with interest thereon from the time they became payable until the death of the widow, it follows that the complainants had no interest in the estate of the testator, beyond the amounts due upon their legacies, which could be affected by these releases.

The decree of the vice chancellor must therefore be reversed; and .the bill of the complainants must be dismissed, with costs.