Wood v. Hammond

17 A. 324, 16 R.I. 98, 1889 R.I. LEXIS 28

• Court: Supreme Court of Rhode Island
• Decided: March 16, 1889
• Status: Published

Opinions

In compliance with the request of the complainants, we will decide immediately the questions which have been submitted to us, leaving others for future decision.

We think that the complainants, in their capacity as executors of the will and codicil of the late Daniel W. Lyman, have power to sell so much of the real estate left by him as will be necessary to pay the legacies given by said will and codicil. The will opens with the following language: "I desire so much of the real estate that I may die seized and possessed of as may be necessary to pay the following legacies to be sold, and from the proceeds of such sale the following legacies paid to the following persons and institutions and societies, to wit." The will near its conclusion contains the following, to wit: "I appoint as executors of this my last will and testament William H. Wood, William A. Hoppin, and Esther D. Chapin, requesting them to use their best judgment about the time for selling the property." The latter clause, especially when taken in connection with the former, necessarily imports, in our opinion, that the executors as such are to sell the real estate in execution of the will, using their best judgment about the time of selling. And see 3 Redfield on Wills, *124. We also think that they have power to sell either at public or private sale, as they deem best, the power given being without restriction.

We are of the opinion that it is the duty of the complainants to pay the mortgage debt of $50,000, exhausting the personal assets before resorting to the real estate. In case of a resort to the real estate, they will have to obtain leave to sell from the Court of Probate, the power to sell given by the will being only to sell for the payment of the legacies. We know of nothing in the statutes which requires that they shall represent the estate as insolvent before applying for or before obtaining leave to sell where the insufficiency of the personal estate to pay the debts is clear.

We are of the opinion that, under the clause by which the testator appoints the complainants trustees under his will over all trusts created by it, "they to pay all incomes over to those who have been given money in trust (or property) after deducting a reasonable compensation for their services," the complainants are only made trustees so far as they are made trustees over those devises and bequests where the words "in trust" are expressly used, and that they may pay over or deliver the property or money covered by all other bequests, including the property and money to be paid to corporations for certain specified purposes, without being obliged to see to the application thereof.

We think that interest will begin to run on the legacies at the end of one year after the death of the testator, unless some other time is appointed by the will for their payment. This is the general rule, and we find nothing in the will to prevent its application.

Decree accordingly.

June 11, 1888, the Court of Probate of the town of North Providence, on the application of the complainants, made a decree authorizing them to make sale of parts of the testator's realty to pay his debts. Thereupon some of the respondents to this bill petitioned this court for an injunctive order forbidding the sale.

November 10, 1888