In re the Estate of Smith — 19 N.Y. St. Rep. 898

Majority

p. 898

In the Matter of the Estate of Isaac B. Smith, deceased.

(Surrogate’s Court, Westchester County,

Filed March, 1888.)

Headnote

1. Distribution of decedent’s estate—Payment of—Personal property MUST BE USED FOR PAYMENT.

The general rule is that a deceased person’s estate is to be applied to the payment of his debts in the following manner: 1. The general personal estate. 2. An estate specifically devised for the payment of debts. 3. Estates descended. 4. Estates specifialijr devised, though charged generally with the payment of debts. It requires express words, or a clear intent of the testator, to disturb this order.

2 Same—Effect of charging- real estate.

The personal estate must be first resorted to, even when the real estate is charged by express words in the will, and where the testator gives his personal estate, he is supposed to give it subject to the payment of his debts. When he charges his real estate with the payment of debts, it is presumed to be such debts as remain after the personal estate is exhausted.

3. Same—Meaning of the words “after all my debts are paid” in will.

The will in which there are devises following the words, “ after all my debts are paid,” indicates an intention on the part of the testator to make the lands devised subject to the debts.

Isaac B. Smith, of Yonkers, left a will which was admitted to probate in January, 1887. The will commenced

p. 899

as follows: “After all my just debts are paid;” and then the testator devised certain specific pieces of real estate to his daughter, N., “subject to the condition that “she do fully pay and discharge all my funeral expenses, and also pay to my daughter, Kate A. Coup, the sum of fifty dollars, all such payments to be made within sixty days after my decease ” He next devised to his wife during her life and widowhood certain other specific real property, with remainder to Mrs. Coup. He then gave the residue of his estate, real and personal, to his wife absolutely, provided that the provisions for his wife were in lieu of dower. The executor filed the petition asking permission to sell all the lands devised for the payment of the testator’s debts, in which it was alleged that there was not sufficient personal property to pay the same, and that they were not a lien or charge upon the real estate. The contestants claimed that the real estate was charged with the payment of said debts by the terms of the will.

R. E. Prime, for petitioner; James M. Hunt, for contestant.

Of course, if the debts be a charge upon the real estate of the testator, this court has no jurisdiction to order a sale for their payment. That duty will devolve upon another court. The general rule is, that a deceased person’s estate is to be applied to the payment of his debts, in the following order: 1st. The general personal estate; 2d. Estates specifically devised for the payment of debts; 3d. Estates descended; 4th. Estates specifically devised, though charged generally with the payment of debts. And it requires express words, or the clear intent of the testator, to disturb this order (Livingston v. Newkirk, 3 Johns. Ch., 312 ; Livingston v. Livingston, id., 148).

But the personal estate must be first resorted to, even where the real estate is so charged; and even where the testator gives his personal estate, he is supposed to give it subject to the payment of his debts, that being the first fund available for the purpose; and when he charges his real estate with the payment of his debts, he is supposed so to charge it with the payment of such debts as may remain after his personal estate is exhausted. There is, however, nothing in the will, in this case, to show that the testator intended to exonerate the personal estate from such payment.

It is immaterial to inquire here, whether the charge of the debts upon the realty, if there be such charge, is upon specific portions, or upon the whole, as the fact that they are charged upon any portion of it, will deprive this court of jurisdiction to entertain the application.

p. 900

There can be no doubt that the testator did charge his debts upon real estate. It has been frequently and uniformly held that the devises, following the words: “ After all my debts are paid,” clearly indicate an intention to make the lands devised subject to the debts. It is sufficient to cite 2 Jarm. on Wills (5th Am. ed., 585, 586); Matter of Will of Fox ( 52 N. Y., 530 ); Matter of Rosenfield ( 5 Dem., 251 ).

Petition dismissed.