Thomas Adams & others vs. Lemuel Brackett, Executor, 5 Met. 280

Hubbard, J. One subject, presented upon these reasons of appeal, arises out of the will of Ebenezer Adams, which we have had occasion in a previous case to consider, so far as it regarded the widow’s claim for dower. Ante, 277. We are now called upon to determine whether the debts of the testator, which the appellee contends exceeded his personal estate,) are a specific charge on the real estate devised to the wife ; or whether they are to be paid out of the real estate which descended to his heirs at law.

The will of the testator was thus : “I give, bequeath and devise to my wife, Elizabeth Adams, the following described pieces of land,” [describing them severally:] “Also all my personal estate of every kind, wheresoever it may be found, that 1 may be possessed of at the time of my decease, after payment is made therefrom of my just debts, funeral charges, and other necessary expenses. To have and to hold the same to her, her heirs, executors, administrators and assigns, to their use and be-hoof forever.

The other part of my real estate is to be disposed of as the law directs.” The appellants contend, that the devise to the wife, of the real and personal estate, is so blended and combined, that the same constitute one fund, and therefore what is a charge upon the one is a charge upon the other. It has indeed been repeatedly decided, that where the two are thus blended, the real estate is equally chargeable with the debts as the personal. Kidney v. Coussmaker, 1 Ves. jr. 436. Bench v. Biles, 4 Mad. R 187. Hassanclever v. Tucker, 2 Binn. 525. Witman v. Norton, 6 Binn. 395.

In these cases, the intent to charge the real estate is necessarily inferred from its being blended with the personal; and in most of the cases where the rule is applied, the devise of the real and personal estate is contained in the same clause. And where the intent is thus manifest, there is no doubt that the burden is as much imposed on the real as on the personal estate. In the case before us, however, the real and personal estate , are not devised in one clause ; there is no blending or combining them together.

Each devise is distinct and separate ; the last does not depend on the first for its construction or meaning; and the intention to charge the real estate cannot be inferred as a necessary consequence which the court are bound to regard. On the other hand, we are of opinion, from the language of the devise itself, the several descriptions of the real estate, and from the manner in which the payment of his debts is mentioned in connexion with the personal estate, that it was not his intention to charge the lands and tenements, devised to his wife, with any portion of his debts.

It has been urged, that the words “ also ” and “ after,” as used in the clause relating to the personal estate, express the intention of uniting the two devises together and making the real estate subject to the debts. If this reliance on single words in common use could be considered as availing the appellants; with equal force, we think, the appellee might contend, that the word “ therefrom ” was appropriated to the personal estate, and would thus clearly express the intention of the testator.

But the case does not call upon us to give any peculiar force to these particular words, though we think them all capable, in themselves, of being applied to preceding clauses and subjects.

Here the intention to charge the debts upon the personal estate being manifest by the distinct clause or paragraph, in which the personal estate is given, containing the direction to pay the debts, we are clearly of opinion that the real estate, which was not devised, but left to be disposed of as the law directs, must, after the personal estate is exhausted, be first applied to the payment of the debts, before the real estate, specifically devised to the widow, can be touched.

Another reason, stated for the appeal from the decree of the court of probate, why no part of the residue of the real estate of the testator, of which the appellants, as heirs at law, are now in possession, should be sold for the payment of debts, is, that the six shares in the Quincy Stone Bank, standing in the name of Elizabeth Adams, the testator’s widow, are sufficient, without the other personal estate, to pay all the debts. This gives rise to the question, whether the six bank shares are the separate property of the widow, or whether they are a portion of the testator’s estate.

The facts do not show whether the money, which was laid out in the purchase of these shares, was ever the separate property of the wife ; and we cannot assume that as a fact, but in the absence of proof, take it foi granted that these shares were purchased with the money of the husband, and given to the wife.

The rights of females in estates, both real and personal, accruing to them before and during coverture, have often come before this court; and since the principles of equity have been infused into our laws, by various statutes, the rigid rules of the common law have been in some degree relaxed, in respect to the capacity of married women to hold property separate from their husbands ; so much so, that a learned judge, in giving a dissenting opinion in the case of Phelps v. Phelps, 20 Pick. 562, says that the case of Stanwood v.

Stanwood, 17 Mass. 57, was not so strong as the one before him, and that, even in that case, the decision was contrary to the rules of the common law. But the case of Stanwood v. Stanwood has received the sanction of successive judges, and- the principles there laid down are now too well established to be longer successfully questioned. No case, that I am aware of, precisely like the one at bar in all ‘ 3 circumstances, has presented itself in our courts. But similar facts are stated by Jackson, J. in his very learned opinion in the case of Draper v. Jackson, 16 Mass. 482.

He says, in considering the question before him, viz. whether a note and mortgage, made to a man and his wife during coverture, should go to the wife, or not, in the event of her surviving, “ we except the case of a voluntary gift by the husband to his wife ; as when he advances his own money or other property, and takes for it a note or bo^d to himself and wife.

This, like every other voluntary conveyance, would, without doubt, be void as against the creditors of the husband.” But here he does not consider such a gift as void in itself, but rather like other voluntary conveyances, which, it is well known, are good against the heirs at law of the grantor ; or. if chattels, against his executors. And in the recent case of Phelps v. Phelps, before referred to, Dewey, J. says, by the husband’s consent, “ she may become a party as grantee to a deed, or obligee to a bond, or payee to a promissory note ; and when thus made a party, new rights may be acquired by her.

This may be effected by a contract made jointly with the husband and wife, or it may be by a contract with l.er alone; and in either case, upon the survivorship of the wife, these interests, although accruing during coverture, will vest in her.” In these cases thus put, I see no reason why the husband may not furnish the consideration to the grantor of the deed, the obligor of the bond, or the maker of the note, for the benefit of his wife, using these parties as trustees, subject only to the claims of creditors. In England it has been determined that, in equity, a gift from the husband to the wife is valid.

Slanning v. Style, 3 P. W. 338. Lucas v. Lucas, 1 Atk. 270. In the case of McLean v. Longlands, 5 Ves. 79, Lord Alvanley says “ nothing less would do than a clear irrevocable gift, either to some person as a trustee, or by some clear ■ and distinct act of his, by which he divested himself of his property, and engaged to hold it as a trustee for the separate use of his wife.” And in Walter v. Hodge, 2 Swanst. 106, Sir Thomas Plumer, in referring to the case of Lucas v.

Lucas, says, “ in the single case of £ 1000 south sea annuities, transferred by the husband into the name of his wife in his life time, the court thought that so decisive

an act, as amounted to an agreement by the husband, that the property should become hers. That seems to come under the description stated by Lord Alvanley ; it is

an act, a clear and distinct act, by which the husband divested himself of his property. ” But the case at bar bears a very strong resemblance to that of Stanwood v. Stanwood, before referred to. And though its incipient stages were different, yet in principle we do not think it distinguishable from that case ; and to enforce a different decision here would be doing a great violence to the intentions of the husband, and to the equitable claims of the wife. The difference, in that case, consisted in the fact, that the bank shares, previous to the marriage, were the property of the wife.

The husband, however, received the dividends, and when the new bank was established and the shares were, reduced, he subscribed for the new shares, in her name, while the balance in cash, which was paid, was passed to his credit. The declaration of his intention not to appropriate it to himself, alone led the court to decide that it was a disaffirmance of any prop erty in himself. So here, in the case at bar, there was a clear and distinct act of the husband, divesting himself of the money necessary for the purchase of the shares, and making the same the property of his wife.

The intention to give and the act of giving are complete ; and the dividends were afterwards received for her benefit. We think, therefore, in the application of the principles in decided cases, this gift can be supported as against the claims of the heirs at law ; and that it may be considered as an appointment, on his part, of the wife, to receive the same to her own use.

If the proceeds of these shares were necessary for the pay ment of the debts of the testator, we are clearly of opinion that they would be held subject to such debts, and that the claims of creditors, in'such a case, are paramount to those of the wife. But in the construction to be given to the will of the testator, it is manifest that he intended that his debts should be paid out of the undevised surplus of his real estate remaining at the time of his death. We are therefore of opinion, that the demand of the heirs, to have the bank shares sold for the payment of debts, cannot be supported.

And in conformity to this opinion, the appeal is dismissed, and the case is to be remitted to the court of probate for further proceedings.