Humes v. Wood

25 Mass. 479

• Court: Massachusetts Supreme Judicial Court
• Decided: October 6, 1829
• Status: Published

Opinion

Parker C. J.

delivered the opinion of the Court. The action cannot be maintained against the executor, because he has no funds out of which to pay the legacy. The personal estate is all consumed by debts and expenses of administration, except the stock, farming utensils, &c. which are specifically devised. The real estate is not charged with the payment of legacies, and besides is also specifically devised. It does not come into the hands of the executor, and he has no authority to sell it. That a devise of a farm or any definite parcel of real estate may be specific, the authorities cited sufficiently show.

It was supposed by the counsel for the plaintiffs, that there being a general residuary devise to those to whom the real estate is given in a preceding clause, this operates as a revocation of the particular devise. But it cannot so operate contrary to the clear intention of the testator, which was, in this residuary clause, to give what might by possibility not have been before disposed of.

Plaintiffs nonsuit.