2 U.S. 243 (1796)

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RUSTON'S EX'RS v. RUSTON, 2 U.S. 243 (1796)

2 U.S. 243 (Dall.)

Ruston's Executors

Supreme Court of Pennsylvania

March Term, 1796

In this action a verdict had been taken for the Plaintiffs, for L 2096 13s4, subject to the opinion of the Court, on a point reserved, to be argued upon a motion for a new trial. The case was this: Job Ruston made his last Will and Testament, dated the 17th of January 1784, and thereby first, 'after his just and lawful debts and funeral charges paid, he bequeathed L 500. and some specific goods and chattels, to his wife. He next devised all his real estate to his eldest son Thomas in fee, provided he payed to his executors L 3000, by annual installments, during seven years and a half; and directed, in case of his son's failing to make these payments, within three months after the times limited for them respectively, that his executors shall sell and convey particular parts of his real estate; but he made no provision for the sale of the residue, consisting of a Messuage, Mill, and Tract of 325 acres of Land. He then gave to each of his children legacies in money, and also some specific legacies, which were to be in full of their respective shares of his estate: [243-Continued.]

He bequeathed L 100 to a charitable use, to be taken out of the remainder of his estate, before any share or dividend shall be made to his sons and daughters: And, lastly, he willed and bequeated the remainder of his estate to his five children, to be divided into ten parts, of which one part is given to his said eldest son Thomas Ruston, another to his daughter Sarah, and the remaining eight parts are given to the three younger children, in equal proportions.' Part of the testator's real estate, devised to his son Thomas Ruston, was subject to a mortgage given to the managers of the Pennsylvania Hospital. Thomas Ruston, the devisee, had paid no part of the L 3000; the lands which the Executors were empowered to sell had, consequently, been sold; but after applying the proceeds of the sale, some of the debts, and all the pecuniary legacies, remained unpaid. For the difference between the proceeds of the sale, and the L 3000, the present action was brought.

The case was argued in September term last, by Ingersoll and M'Kean, for the plaintiffs, and by E. Tilghman and Heatly, for the defendant: And two questions were made. 1st. Whether the whole of the real estate devised to the defendant Thomas Ruston, was liable for the payment of the L 3000, for satisfying the testator's debts and legacies? 2nd. Whether the defendant was bound to discharge the mortgage, on a part of the lands devised to him, out of his own funds; or the Executors were bound to discharge it out of the testator's personal estate?

On the first question the plaintiff's counsel cited 2 Vent. 357.

Page 2 U.S. 243, 244

1 Eq. Abr. 199. pl. 10 2 Vern. 26. Bendl. Rep. 281. Dy. 348. 1 Atk. 382. 3 Bro. Ca. in Ch. 165: And on the second question they cited, 1 Ch. Ca. 271. 1 P. Wms. 730, 1. 1 Eq. Abr. 142. pl. 7. Ibid. 143 pl. 11. 3 Woodes. 485.

The counsel for the defendant cited, 2 Bl. Com. 119. 111. 1 Atk. 382. Shep. T. 121. Lov. on Wills 54. 1 Cha. Ca. 271.

On the 2nd of April 1786, the Chief Justice delivered the following opinion:

M'Kean, Chief Justice.

In the case of an intestacy, the rule of law is clear, that simple contract debts, bonds, mortgages, and specialties of every sort, must be paid by the administrators out of the personal estate, this being the natural fund for debts, tho' the younger children should be thereby left destitute: But where there is a will, the testator can substitute other funds in the place of the personal estate. What has Job Ruston willed in this particular, is the question.

The intention of the testator shall govern the construction of a will in all cases, except where the rule of law over-rules the intention, and this is reduceable to four instances. 1. Where the devise would make a perpetuity. 2. Where it would put the freehold in abeyance. 3. Where chattels are limited as inheritances. And 4. Where a fee is limited on a fee. Select cases in Chan. 31. Papillon v. Voice. And this intention must be collected from the whole of the will or writing itself. 3 Burr. 1541. 1581. 1662. 2 Burr. 771. 1106. 1 Vez. 231, and many other books.

What then was the intention of the testator as expressed in his will? The value of the real estate devised to the defendant, the quantum of his debts, and the amount of his personal estate at his death, would give considerable light in this matter. These have not been satisfactorily ascertained to us. However, we have been told, that the debts, specific and pecuniary legacies, with the charges of administration, will amount to about L 3860. and that the personal estate produced only L 588 13s9. So that if the defendant had paid the L 3000, there would have been a deficiency of L 270, and upwards, and nothing left for the residuary legatees. The counsel for the defendant insist, that he shall hold the remainder of the real estate unfold by the executors, exempt from the payment not only of any of the legacies, but also of the debts, unless the personal estate and the produce of the lands sold shall prove insufficient for the discharge of the debts; because, they say, the L 3000 was no legacy to the executors; it was no charge on the lands, for they were all devised to the heir at law; it was no condition, there being no remedy in case of failure; and it was no limitation, there being no devise over. [2 U.S. 243, 245]

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