Plimpton v. Fuller

93 Mass. 139

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1865
• Status: Published

Opinion

Gray, J.

The general rule of law, in the absence of any expressed intent, is that debts contracted by the testator, although secured by mortgage, are to be pair out of his personal property t<? the exoneration of his real estate. Seaver v. Lewis, 14 Mass. 83. Hewes v. Dehon, 3 Gray, 205. In this case, the expressed intent accords with the general rule. The gift of the personal property to the widow is in terms postponed to the payment of all debts, legacies and charges against the estate. In the devise of the homestead to the father, the use of the words restricting it to the testator’s right, title and interest is accounted for by the outstanding right of dower in his mother, if not by a life estate in his aunts. The direction to sell other real estate has no tendency to charge this. The manifest intention of the testator was to devise to his father the homestead which had once been his, subject only to his wife’s right of dower, and to the possession for life of the testator’s maiden aunts. The personal property is therefore to be applied to the discharge of the mortgage.

Decree accordingly.