Flynn, C. J.
This action in assumpsit was brought by
the holder of a promissory note, secured by a mortgage on real estate, to recover from defendant the amount of deficiency remaining unpaid on that note after a mortgage foreclosure sale of said realty. By agreement of the parties in open court the case was presented before a justice of the superior court, sitting without a jury, on the undisputed facts as alleged in the declaration; and thereupon a decision was rendered for the plaintiff in the sum of $2705.55 with interest. The case is before us on the defendant's exception to that decision.
The facts as alleged in the declaration are substantially as follows: On September 18, 1920 John J. Cleary, as owner of certain realty located at 46 Carpenter street, Pawtucket, in this state, executed and delivered his promissory note to the plaintiff in the sum of $4500, payable one year after date, with interest at the rate of 6% per annum, semiannually in advance. This note was secured by a first mortgage on said realty. Thereafter, by warranty deed, dated September 18, 1920, said realty was conveyed subject to the above mortgage to the Monast Realty Company, a Rhode Island corporation. The latter, by its quitclaim deed, dated April 4, 1933, conveyed said realty to Louis Monast, husband of the defendant, who continued to be the owner of said premises until his death on April 16, 1936.
Louis Monast left a will but it was nowhere set out in full or introduced. The declaration merely states that by the sixth clause thereof he devised said real estate to defendant in the following language: “I also give to my said wife, Marie F. Monast, the property situated at number 46 Carpenter Street, in said Pawtucket, she to assume any outstanding mortgage there may be on said property at the time of my decease”.
During testator’s life and ownership of this realty, he paid the taxes assessed against it and also paid the mortgage interest. Said mortgage and note were in full force and effect at the time of his death. Defendant did not file in the probate court her non-acceptance of the above devise; but, on the
contrary, she entered into the exclusive possession of the realty, collected rents and income therefrom and enjoyed the full benefits thereof. She also paid the municipal taxes assessed against said property for the years 1936 and 1937. Further, she made four semiannual payments of interest called for by the mortgage and note for the periods between September 18, 1936 and March 18, 1938.
On October 17, 1939, acting under the power of sale contained in the mortgage, the conditions of which had been broken, the plaintiff duly caused to be held a foreclosure sale at which the realty was sold. The difference between the proceeds from this sale and the amount due under the mortgage and note, including unpaid taxes, water charges, interest, and lawful expenses of the foreclosure sale, was $2705.55. On these undisputed facts the trial justice rendered a decision for the plaintiff.
The defendant contends that the testator did not, by his acceptance of a quitclaim deed of said realty subject to the mortgage, or by his payments of interest thereon, become personally liable to the plaintiff for the mortgage debt; and that, since the testator was not so liable for such debt, the defendant did not become personally liable therefor by her acceptance of the devise of the mortgaged realty under the sixth clause of the testator’s will as above quoted. In support of these basic contentions the defendant has argued by analogy various questions of law from cases relating to subrogation, contracts for the benefit of third persons, principal and surety, and donee beneficiary. Much of this argument, however, does not seem to us to be applicable to and decisive on the facts as alleged in the declaration, they being the only evidence before the court in the instant case.
In our opinion this case is governed by the law of gifts and of assumpsit, when properly applied to the intention of the testator as shown by his will and to the conduct of the parties with reference to the realty and mortgage as shown by the evidence. It is generally well settled law that a donee may not accept the full benefits of a testa
mentary gift to which a burden is attached and at the same time refuse to accept and perform a substantial part of that burden. As sometimes stated, a donee must accept the gift
cum onere.
In the instant case it is clear from the language of the sixth clause of the will that the testator intended to attach some burden to his gift of the realty to the defendant. Of course, she was free either to accept or to refuse this gift. But if she elected to accept it according to its terms as stated in the will, she would be bound to undertake whatever burden was expressly attached thereto. It is uncon-tradicted that the defendant did accept this gift in accordance with its terms. In these circumstances, therefore, the law of gifts requires that she also accept whatever burden was intended by the testator's language, namely, “she to assume any outstanding mortgage there may be on said property at the time of my decease”.
The defendant argues, in effect, that the testator never had assumed any personal liability to the plaintiff for the mortgage debt and that this language in his will should not be construed as attaching to this gift to his wife a burden of liability greater than he himself had undertaken. The answer to this contention requires a determination of the testator’s intent as disclosed by the only language of his will that is before us.
Such intent is to be given effect, if lawful; and ordinarily that intent is to be ascertained from a reading of the whole will and solely from the language therein, if it is unambiguous. For some reason the parties here agreed to present a question involving the testator’s intent by merely stating one of the clauses of his will. Obviously, that is not a satisfactory method of presenting such a question for decision. However, because of the circumstances and the peculiar method adopted by the parties, we are constrained, for the purposes of this case, to treat this sixth clause as being the entire will; and to ascertain the testator’s intent, if possible, solely from the language he used therein. In our
opinion this is possible because the language of this clause, without more, is plain, unambiguous, and comprehensive.
The verb to assume, considered either in its ordinary or in its technical sense, means to undertake. To assume a mortgage as part of a gift is not the same as to take the gift merely subject to the mortgage. The words “to assume any outstanding mortgage there may be on said property at the time of my decease” are comprehensive and do not appear to us to permit of any exception. So far as is shown by any evidence before us, the mortgage in question was the only one outstanding on this realty at the time of testator’s death. There is no other portion of the will before us to cast doubt upon the language of the devise as used by the testator.
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Flynn, C. J.
This action in assumpsit was brought by
the holder of a promissory note, secured by a mortgage on real estate, to recover from defendant the amount of deficiency remaining unpaid on that note after a mortgage foreclosure sale of said realty. By agreement of the parties in open court the case was presented before a justice of the superior court, sitting without a jury, on the undisputed facts as alleged in the declaration; and thereupon a decision was rendered for the plaintiff in the sum of $2705.55 with interest. The case is before us on the defendant's exception to that decision.
The facts as alleged in the declaration are substantially as follows: On September 18, 1920 John J. Cleary, as owner of certain realty located at 46 Carpenter street, Pawtucket, in this state, executed and delivered his promissory note to the plaintiff in the sum of $4500, payable one year after date, with interest at the rate of 6% per annum, semiannually in advance. This note was secured by a first mortgage on said realty. Thereafter, by warranty deed, dated September 18, 1920, said realty was conveyed subject to the above mortgage to the Monast Realty Company, a Rhode Island corporation. The latter, by its quitclaim deed, dated April 4, 1933, conveyed said realty to Louis Monast, husband of the defendant, who continued to be the owner of said premises until his death on April 16, 1936.
Louis Monast left a will but it was nowhere set out in full or introduced. The declaration merely states that by the sixth clause thereof he devised said real estate to defendant in the following language: “I also give to my said wife, Marie F. Monast, the property situated at number 46 Carpenter Street, in said Pawtucket, she to assume any outstanding mortgage there may be on said property at the time of my decease”.
During testator’s life and ownership of this realty, he paid the taxes assessed against it and also paid the mortgage interest. Said mortgage and note were in full force and effect at the time of his death. Defendant did not file in the probate court her non-acceptance of the above devise; but, on the
contrary, she entered into the exclusive possession of the realty, collected rents and income therefrom and enjoyed the full benefits thereof. She also paid the municipal taxes assessed against said property for the years 1936 and 1937. Further, she made four semiannual payments of interest called for by the mortgage and note for the periods between September 18, 1936 and March 18, 1938.
On October 17, 1939, acting under the power of sale contained in the mortgage, the conditions of which had been broken, the plaintiff duly caused to be held a foreclosure sale at which the realty was sold. The difference between the proceeds from this sale and the amount due under the mortgage and note, including unpaid taxes, water charges, interest, and lawful expenses of the foreclosure sale, was $2705.55. On these undisputed facts the trial justice rendered a decision for the plaintiff.
The defendant contends that the testator did not, by his acceptance of a quitclaim deed of said realty subject to the mortgage, or by his payments of interest thereon, become personally liable to the plaintiff for the mortgage debt; and that, since the testator was not so liable for such debt, the defendant did not become personally liable therefor by her acceptance of the devise of the mortgaged realty under the sixth clause of the testator’s will as above quoted. In support of these basic contentions the defendant has argued by analogy various questions of law from cases relating to subrogation, contracts for the benefit of third persons, principal and surety, and donee beneficiary. Much of this argument, however, does not seem to us to be applicable to and decisive on the facts as alleged in the declaration, they being the only evidence before the court in the instant case.
In our opinion this case is governed by the law of gifts and of assumpsit, when properly applied to the intention of the testator as shown by his will and to the conduct of the parties with reference to the realty and mortgage as shown by the evidence. It is generally well settled law that a donee may not accept the full benefits of a testa
mentary gift to which a burden is attached and at the same time refuse to accept and perform a substantial part of that burden. As sometimes stated, a donee must accept the gift
cum onere.
In the instant case it is clear from the language of the sixth clause of the will that the testator intended to attach some burden to his gift of the realty to the defendant. Of course, she was free either to accept or to refuse this gift. But if she elected to accept it according to its terms as stated in the will, she would be bound to undertake whatever burden was expressly attached thereto. It is uncon-tradicted that the defendant did accept this gift in accordance with its terms. In these circumstances, therefore, the law of gifts requires that she also accept whatever burden was intended by the testator's language, namely, “she to assume any outstanding mortgage there may be on said property at the time of my decease”.
The defendant argues, in effect, that the testator never had assumed any personal liability to the plaintiff for the mortgage debt and that this language in his will should not be construed as attaching to this gift to his wife a burden of liability greater than he himself had undertaken. The answer to this contention requires a determination of the testator’s intent as disclosed by the only language of his will that is before us.
Such intent is to be given effect, if lawful; and ordinarily that intent is to be ascertained from a reading of the whole will and solely from the language therein, if it is unambiguous. For some reason the parties here agreed to present a question involving the testator’s intent by merely stating one of the clauses of his will. Obviously, that is not a satisfactory method of presenting such a question for decision. However, because of the circumstances and the peculiar method adopted by the parties, we are constrained, for the purposes of this case, to treat this sixth clause as being the entire will; and to ascertain the testator’s intent, if possible, solely from the language he used therein. In our
opinion this is possible because the language of this clause, without more, is plain, unambiguous, and comprehensive.
The verb to assume, considered either in its ordinary or in its technical sense, means to undertake. To assume a mortgage as part of a gift is not the same as to take the gift merely subject to the mortgage. The words “to assume any outstanding mortgage there may be on said property at the time of my decease” are comprehensive and do not appear to us to permit of any exception. So far as is shown by any evidence before us, the mortgage in question was the only one outstanding on this realty at the time of testator’s death. There is no other portion of the will before us to cast doubt upon the language of the devise as used by the testator.
In the absence of anything in the evidence before the court, which would justify a refusal to give to this language its plain meaning and effect, we are constrained to hold that this testamentary gift, if accepted, carried with it the obligation on the part of the donee to undertake personally the payment of the mortgage debt. The defendant does not appear to contend that the testator was without power to devise this realty so that the donee, by her acceptance, would be liable personally to pay the mortgage debt even though the testator was not so liable. But she contends, in effect, that such an intention was improbable or absurd and should not be inferred unless it clearly appears in the will. The sufficient answer thereto is to be found, as we have said, in the unambiguous statement of the testator’s intention in the sixth clause, which leaves no room for' inference, and to which language we are restricted upon the record before us.
The unmistakable terms of the gift, coupled with the undisputed evidence of defendant’s conduct toward the mortgaged realty and the mortgage debt were sufficient, in our opinion, to justify the trial justice in finding an implied promise on her part personally to pay the principal of the note in suit. It is undisputed that the defendant did not
refuse this gift or make any written or oral reservation to anybody concerning her acceptance of it. Nor did she, before she made her election to accept the gift according to its plain terms, bring any bill for the construction of the will, as she might have done if she believed that the language of the devise was at all doubtful as to the extent of the personal liability attached thereto. On the contrary, she accepted the gift according to its terms, entered into the exclusive possession of the mortgaged realty, and took full advantage of all the income and benefits therefrom.
Such unqualified acceptance and entry were followed by her payments of taxes and interest called for by the mortgage and note. The plaintiff, in these circumstances, accepted the payments of the interest and did not demand the whole principal due on the note as she was entitled to do. Qn the evidence as agreed, we are of the opinion that an implied promise on the part- of the defendant to pay to the plaintiff the principal of the mortgage debt could reasonably be found. Since no other fact was introduced to contradict or otherwise explain such evidence, it stood as sufficient to support the decision for the plaintiff, as rendered by the trial justice.
The defendant’s exception is overruled, and the case is remitted to the superior court for entry of judgment on the decision.