Emery, V. C.
(after stating facts and issues).
The general direction of testator, in the first clause of his will, that his debts be paid, charges them upon his real estate (Shreve v. Shreve, 17 N. J. Eq. (2 C. E. Gr.) 487, 494; Suydam v. Voorhees, 58 N. J. Eq. (13 Dick.) 157, 165 (Vice-Chancellor [230]*230Reed, 1899), the personal estate being, however, the primary fund. The devise and bequest to the widow being in lieu of dower, and there being no other provision for her support, she becomes, upon the acceptance of the estate, in accordance with the testator's wishes, a purchaser for value. Wiggins v. Wiggins, 65 N. J. Eq. (20 Dick.) 417 (Vice-Chancellor Pitney, 1903), and cases cited at p. 425 Borden v. Jenks, 140 Mass. 562, 564 (1886). Her status as such purchaser for value is favored by the courts against legatees and devisees who claim as mere volunteers. Thus the legacy, in lieu of dower, is not subject to abatement with other general legacies. Dey v. Dey’s Administrator, 19 N. J. Eq. (4 C. E. Gr.) 137, 141 (Chancellor Zabriskie, 1868); 2 Wms. Ex.(R. & T. ed.) 669, 670, note 9. As to the priority of the legacy in lieu of dower over the devises of real estate, the question is purely a question of the intention of the testator to be gathered from the will itself, reading this, when difficulties or ambiguities arise from tire will itself, in connection with the situation of the testator's property and the persons taking. In determining the intention from the will itself, some authorities hold that, in view of the valuable consideration paid by the widow by relinquishing her dower, she is a quasi creditor, and, in the absence of any indication of a contrary intention, a legac3q directed to be paid in lieu of dower, is payable out of all testator's estate, as his debts would be, and marshaled as in case of debts payable. Borden v. Jenks, 140 Mass. 567. At the original hearing of the cause this was my view of the rule of construction to be applied, and if the question is an open one in this state, it is the rule which I would apply in the case. On the application for rehearing it is claimed by defendants’ counsel that an early decision in our own courts (Paxson v. Potts, 3 N. J. Eq. (2 Gr.) 313, Chancellor Vroom, 1835) applied Hie opposite rule of construction, and held that a legacy, coupled with a devise of land in lieu of dower, was not chargeable on lands devised to beneficiaries in the-absence of an intention to charge declared expressly or by necessary implication, and so clearly as not to admit of a reasonable doubt. This is undoubtedly the rule still generally applied as against heirs-at-law, who must be clearly disinherited, and as between [231]*231legatees or devisees, who are all merely volunteers; but the question now is whether this is the rule to be applied to the present ease, where the legacy to the widow, in lieu of dower, must be taken as also for her support. The payment is to be made monthly, and she does not appear to have any other source of income. In Paxon v. Potts, supra, the equity to charge the legacy, because given in lieu of dower, seems to have been considered as depending on the relative value of the dower right and the legacy and devise in lieu thereof, and in the absence of any proof on this subject the chancellor considered that the supposed equity would be based on mere conjecture, and he declined to charge the lands. The question of the intention of the testator to provide for the support of his widow, appearing by positive directions for payment made, by the will, and the situation of his property showing that the legacy was given for support, was not involved in the case. It seems clear that relative values of the legacy or devise and of the dower cannot in such cases be made the sole test of the existence of the equity to charge lands, for these provisions in lieu of dower are manifestly not made by way of bargaining with the widow for a sale of her rights. The testator, in disposing of his estate and in discharging the moral obligation to provide for the support of the widow, has the right to fix, in her favor, his own price as the equivalent for the release of her dower. Farnum v. Boscom, 122 Mass. 282, 289 (1877); Borden v. Jenks, 140. Mass. 566, 567. Chancellor Vroom, in Van Winkle v. Van Houten, 3 N. J. Eq. (2 Gr.) 172, 190 (1834), had just previously considered the question whether a legacy, given to a child for support, was charged upon lands, and held that this circumstance distinguished the legacy from a purely voluntary legacy and was entitled to great weight in determining that the legacy was charged. The cases referred to by him charged the lands, in the absence of express words or necessary implication other than that arising from the condition of the estate and the situation of the persons taking. It is difficult, I think, to distinguish upon principle between the effect of a legacy for support to a child and to a widow, and I do not think that the learned chancellor, in deciding this point, in Paxson v. Potts, intended in any way to question the prin[232]*232ciples laid down by him in the previous decision. In Snyder v. Warbasse, 11 N. J. Eq. (3 Stock.) 463 (1857), the legacy was in lieu of dower, and Chancellor Williamson gave that fact consideration in connection with the other facts in the case and held the legacy chargeable. In the later case, Corwine v. Corwine, 24 N. J. Eq. (9 C. E. Gr.) 579 (Court of Errors and Appeals), the court of errors and appeals considered Paxson v. Potts, but not on the point now in issue. Taking the question, therefore, to be still an open one, my view is that, in the absence of a contrary intention appearing, a legacy directed to be paid in lieu of dower and given for the support of the widow, should, as between the widow and the other devisees, be deemed to be payable out of the entire estate and be charged upon the lands. It is admitted by the executors and devisees that the legacy is chargeable on the income of the lands and personal estate, and the main question is whether the legacy is payable out of the corpus or only out of the income of real estate. In my view, taking the will itself in connection with the situation of testator’s property and the persons taking, it sufficiently appears that the intention of the testator was that the legacy to the wife was to be paid out of tire corpus of the estate, real as well as personal, and not merely from tile income of the real estate. The direction for payment of $50 per month to the widow by the second clause of the will was absolute, and the only matter left open for agreement between the executors and the widow was a change in the time of payment fixed by the testator. . This general direction for payment did not limit the source of payment to tire personal estate, and the testator must be taken to have known that his personal estate would be exhausted by the payment of debts. That the payment thus generally directed was intended tó be made from other sources than the personal estate appears from the subsequent clauses of the will. Having directed the payment of debts, funeral expenses and this legacy to the wife, the testator, in the fourth clause, orders and authorizes the executors to sell both personal and real estate, and directs that the moneys remaining in their hands shall be invested. The "moneys remaining” means, I take it, remaining from the proceeds of sale after deducting something. This
Free access — add to your briefcase to read the full text and ask questions with AI
Emery, V. C.
(after stating facts and issues).
The general direction of testator, in the first clause of his will, that his debts be paid, charges them upon his real estate (Shreve v. Shreve, 17 N. J. Eq. (2 C. E. Gr.) 487, 494; Suydam v. Voorhees, 58 N. J. Eq. (13 Dick.) 157, 165 (Vice-Chancellor [230]*230Reed, 1899), the personal estate being, however, the primary fund. The devise and bequest to the widow being in lieu of dower, and there being no other provision for her support, she becomes, upon the acceptance of the estate, in accordance with the testator's wishes, a purchaser for value. Wiggins v. Wiggins, 65 N. J. Eq. (20 Dick.) 417 (Vice-Chancellor Pitney, 1903), and cases cited at p. 425 Borden v. Jenks, 140 Mass. 562, 564 (1886). Her status as such purchaser for value is favored by the courts against legatees and devisees who claim as mere volunteers. Thus the legacy, in lieu of dower, is not subject to abatement with other general legacies. Dey v. Dey’s Administrator, 19 N. J. Eq. (4 C. E. Gr.) 137, 141 (Chancellor Zabriskie, 1868); 2 Wms. Ex.(R. & T. ed.) 669, 670, note 9. As to the priority of the legacy in lieu of dower over the devises of real estate, the question is purely a question of the intention of the testator to be gathered from the will itself, reading this, when difficulties or ambiguities arise from tire will itself, in connection with the situation of the testator's property and the persons taking. In determining the intention from the will itself, some authorities hold that, in view of the valuable consideration paid by the widow by relinquishing her dower, she is a quasi creditor, and, in the absence of any indication of a contrary intention, a legac3q directed to be paid in lieu of dower, is payable out of all testator's estate, as his debts would be, and marshaled as in case of debts payable. Borden v. Jenks, 140 Mass. 567. At the original hearing of the cause this was my view of the rule of construction to be applied, and if the question is an open one in this state, it is the rule which I would apply in the case. On the application for rehearing it is claimed by defendants’ counsel that an early decision in our own courts (Paxson v. Potts, 3 N. J. Eq. (2 Gr.) 313, Chancellor Vroom, 1835) applied Hie opposite rule of construction, and held that a legacy, coupled with a devise of land in lieu of dower, was not chargeable on lands devised to beneficiaries in the-absence of an intention to charge declared expressly or by necessary implication, and so clearly as not to admit of a reasonable doubt. This is undoubtedly the rule still generally applied as against heirs-at-law, who must be clearly disinherited, and as between [231]*231legatees or devisees, who are all merely volunteers; but the question now is whether this is the rule to be applied to the present ease, where the legacy to the widow, in lieu of dower, must be taken as also for her support. The payment is to be made monthly, and she does not appear to have any other source of income. In Paxon v. Potts, supra, the equity to charge the legacy, because given in lieu of dower, seems to have been considered as depending on the relative value of the dower right and the legacy and devise in lieu thereof, and in the absence of any proof on this subject the chancellor considered that the supposed equity would be based on mere conjecture, and he declined to charge the lands. The question of the intention of the testator to provide for the support of his widow, appearing by positive directions for payment made, by the will, and the situation of his property showing that the legacy was given for support, was not involved in the case. It seems clear that relative values of the legacy or devise and of the dower cannot in such cases be made the sole test of the existence of the equity to charge lands, for these provisions in lieu of dower are manifestly not made by way of bargaining with the widow for a sale of her rights. The testator, in disposing of his estate and in discharging the moral obligation to provide for the support of the widow, has the right to fix, in her favor, his own price as the equivalent for the release of her dower. Farnum v. Boscom, 122 Mass. 282, 289 (1877); Borden v. Jenks, 140. Mass. 566, 567. Chancellor Vroom, in Van Winkle v. Van Houten, 3 N. J. Eq. (2 Gr.) 172, 190 (1834), had just previously considered the question whether a legacy, given to a child for support, was charged upon lands, and held that this circumstance distinguished the legacy from a purely voluntary legacy and was entitled to great weight in determining that the legacy was charged. The cases referred to by him charged the lands, in the absence of express words or necessary implication other than that arising from the condition of the estate and the situation of the persons taking. It is difficult, I think, to distinguish upon principle between the effect of a legacy for support to a child and to a widow, and I do not think that the learned chancellor, in deciding this point, in Paxson v. Potts, intended in any way to question the prin[232]*232ciples laid down by him in the previous decision. In Snyder v. Warbasse, 11 N. J. Eq. (3 Stock.) 463 (1857), the legacy was in lieu of dower, and Chancellor Williamson gave that fact consideration in connection with the other facts in the case and held the legacy chargeable. In the later case, Corwine v. Corwine, 24 N. J. Eq. (9 C. E. Gr.) 579 (Court of Errors and Appeals), the court of errors and appeals considered Paxson v. Potts, but not on the point now in issue. Taking the question, therefore, to be still an open one, my view is that, in the absence of a contrary intention appearing, a legacy directed to be paid in lieu of dower and given for the support of the widow, should, as between the widow and the other devisees, be deemed to be payable out of the entire estate and be charged upon the lands. It is admitted by the executors and devisees that the legacy is chargeable on the income of the lands and personal estate, and the main question is whether the legacy is payable out of the corpus or only out of the income of real estate. In my view, taking the will itself in connection with the situation of testator’s property and the persons taking, it sufficiently appears that the intention of the testator was that the legacy to the wife was to be paid out of tire corpus of the estate, real as well as personal, and not merely from tile income of the real estate. The direction for payment of $50 per month to the widow by the second clause of the will was absolute, and the only matter left open for agreement between the executors and the widow was a change in the time of payment fixed by the testator. . This general direction for payment did not limit the source of payment to tire personal estate, and the testator must be taken to have known that his personal estate would be exhausted by the payment of debts. That the payment thus generally directed was intended tó be made from other sources than the personal estate appears from the subsequent clauses of the will. Having directed the payment of debts, funeral expenses and this legacy to the wife, the testator, in the fourth clause, orders and authorizes the executors to sell both personal and real estate, and directs that the moneys remaining in their hands shall be invested. The "moneys remaining” means, I take it, remaining from the proceeds of sale after deducting something. This [233]*233deduction can be only of payments previously directed, which were three in number, viz., the debts, funeral expenses and the payments to the wife. Counsel for the executors contend that the clause means, remaining- after only debts and funeral expenses paid, but this limitation to two of three payments previously directed does not seem to be justified. So far as relates to the proceeds of sale of real estate, the legacy is, by this clause, made payable out of the corpus, and if this be true, then this mingling of the proceeds of sale of real and personal estate directed and authorized to be sold, and the disposition of the proceeds as a common fund are strong indications that the- legacies as well as the debts are chargeable on the corpus of the entire estate. The power to sell the lands to create this common fund is also evidence of an intention to charge the corpus of the estate with the payment of debts and legacies which the executors are directed to pay. The fourth clause, read with the second clause, would seem, therefore, to make the legacy chargeable on and payable out of the corpus. The fifth clause is relied on as limiting the effect of the previous -clauses so as to confine the charge to the income only. This clause provides that whenever the income exceeds $150 a month, all over $50 to the wife and other expenses are to be divided among testator’s children. It is insisted that, by this fifth clause, the testator indicates that only the income of the real estate is chargeable with the annuity, but this clause, I think, was not intended to limit the effect of the previous general directions for payment and tire previous charges upon the proceeds of sale of the entire estate, but was intended solely to provide for the possible contingency of an income more than sufficient to pay the legacy and other current expenses of the estate. This is the plain effect of the direct language of this clause, and it is only indirectly and by inference that any gift at all to the widow out of the income is made by this clause. The clause proceeds on the assumption that the widow, by the previous direction of the will in the second clause, is entitled to receive payment from the income (either gross or net) and was not inserted for tire purpose of securing the income to her as an additional source of payment which the testator supposed she did not have under the second clause. In view of [234]*234his debts and the rental value of his property at the time of his death, tire testator could not have been taken to- intend that the monthly payments should, at all events, be made from net income only. The last clause of the will gives all the real and personal estate together to testator’s three children — one son, who is the executor, and two daughters, the wives of two other executors. A residuary clause, devising real and personal property together, is now considered as indicating an intention to charge general legacies upon the real estate. Corwine v. Corwine, 24 N. J. Eq. (9 C. E. Gr.) 579 (Court of Errors and Appeals, 1874), qualifying on this point the views expressed in Paxson v. Potts. This clause is not in terms a residuary clause, but it is a blending of the real and personal estate into a common fund for the purpose of division by the executors between the devisees after the death of the widow and after the payments previously directed have been made. The devise of the property is made to three devisees, one of whom is one of the executors, who are directed to make the payment, and the other two devisees are the wives of the executors directed to make the pajunent. Where the executors and devisees are the same persons, land, devised immediately to them is considered to be charged with the legacies directed to be paid, and this whether there was a deficiency of personal estate or not. The reason is that in such case the meaning of the devise is that the devisee holds on condition that he do pay. Wyckoff v. Wyckoff, 48 N. J. Eq. (3 Dick.) 113, 119 (Vice-Chancellor Pitney, 1891), affirmed on appeal for reasons stated (49 N. J. Eq. (4 Dick.) 344) And in Van Winkle v. Van Houten, supra, Chancellor Vroom considered that where the wives of the executors, who were directed to pay the legacy, were the devisees, the circumstance was entitled to weight on the question whether the land was charged with the legacies.
The conclusion I reach is that the monthly payment to the wife in lieu of dower was to' be paid in any event, and that it was chargeable upon the corpus of the estate. It was payable out of the proceeds of the real and personal estate sold after payment of the debts and funeral expenses, and so far as these proceeds have been taken for other purposes the executors must account to complainant. The annuity will be declared to be chargeable on [235]*235the corpus of the estate, but as the executors under the will are invested with a discretion as to the time of sale, no sale should be directed unless it appear that the executors are, as alleged in the bill, improperly delaying the sales of real estate, or, that a sale is necessary for the payment of the ,annuity. The cause will stand over for further hearing upon the questions of the amount in the executors’ hands applicable to' the annuity and of directions for sale.