16. A residuary legatee cannot call upon either general or specific legacies or devises to abate in his favor, even if the entire residue be exhausted.

Petition for an opinion on a case stated for the construction of a will by George A. 'Martin, executor and trustee of the will of Amey Mowry, deceased, and others. Opinion rendered.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

Clarke H. Johnson, Walter S. Reynolds, Dexter B. Potter, Cooke & Angell, Arnold Green, John C. Pegram, Comstock & Gardner, Van Slyck & Mumford, and Barney & Lee, for various parties.

ROGERS, J. This is a petition in equity, under chapter 240, § 24, Gen. Laws R. I. 1896, for an opinion, preferred by George E. Martin, executor and trustee, and by Herbert Winsor Mowry, Walter Scott Mowry, and others, devisees or legatees, under the will of Amey Mowry, of Providence, deceased, for the construction of certain clauses thereof, and of the codicil thereto.

It appeared that the testatrix died at Providence, October 12, 1900, leaving a last will, dated September 25, 1894, and a codicil thereto, dated October 20, 1898, which said will and codicil were duly admitted to probate November 7, 1900, and said Martin was duly appointed as executor and trustee thereunder, and is now acting as such; that said Herbert Winsor Mowry and Walter Scott Mowry are father and son, and son and grandson, respectively, of the testatrix, and her sole lineal descendants living at the date of her will and at the time of her death; that said will contained a dozen separate devises and bequests, some being general and some specific. The residuary clause was as follows: "Fifteenth. All the rest and residue of my estate I give, devise and bequeath to my said son, to him, his heirs and assigns forever, including all my household furniture, ornaments, books, pictures and utensils." The bulk of the testatrix's property was given by a series of devises and legacies to said Martin in trust for her said son's benefit for life, and after his death to said son's children, or their lineal descendants, with ulterior gifts, in certain contingencies, over to certain persons or charitable institutionsmostly the latter. The only purpose apparent in breaking the aggregate amount of the legacies for the benefit of her son up into numerous separate trusts was to distribate the ulterior gifts, should they ever take effect, among a large number of objects mostly charitable institutions.

The codicil directed the trustee, in the words thereof, "as soon as reasonably may be after my decease to pay the indebtedness which my son Herbert Winsor Mowry now owes, or may then owe to Jewett City Savings Bank, provided that said trustee and his successors receive from said bank the shares

of the capital stock of Slater Cotton Company of Pawtucket, Rhode Island, now or then held by said bank as collateral to said indebtedness."

It further appeared that on September 25, 1894, the time of the execution of said will, said testatrix was seised and possessed of no real estate other than the homestead estate and the farm in Cranston mentioned in said will, nor did she acquire any other real estate, but died seised and possessed of said homestead and said farm; that at the time of the execution of said will, in 1894, the testatrix was possessed of certain personal estate detailed in the petition, together with money and other personal property aside from that specifically bequeathed, to an amount probably sufficient to pay the pecuniary legacies named in the 4th, 5th, 6th, 7th, and 10th clauses of said will; that at the time of the execution of said will the testatrix was not possessed of property much, if any, in excess of the amount required for the general and specific devises and legacies of said will and to pay debts; that thereafterwards, on account of a prolonged illness, covering a period of years from the date of said will till the time of her decease, the property of the testatrix was materially reduced, so that at the time the codicil was executed, in October, 1898, said testatrix was possessed of considerably less than when said original will was executed, in September, 1894, and at the time of her death her said property had been still further reduced, and comprised, besides said homestead and farm, and certain personal property specifically bequeathed, other personal property not specifically mentioned in said will, to an amount somewhat in excess of that required to pay debts and funeral expenses, but not nearly enough to pay the general pecuniary legacies; that the testatrix knew the condition of her property at the time said will was executed, and also when said codicil was added thereto; that the indebtedness of Herbert Winsor Mowry to the Jewett City Savings Bank, mentioned in said codicil, had been incurred some years prior to October, 1898; that the capital stock of the Slater Cotton Company then and now held by the said bank as collateral security for the payment of the note of Herbert Winsor Mowry was at that time, and now is, the property of said Herbert Winsor Mowry, subject to the rights of said bank as pledgee, said stock having been acquired by him by will from his father, who died in 1889, and having been by said Herbert Winsor Mowry pledged as collateral as aforesaid; that said shares of stock stood on June 10, 1891, and have down to the present time stood, and now stand, upon the books of said Slater Cotton Company, in the name of the Jewett City Savings Bank, of Jewett City; that some time shortly prior to the time of the execution of said codicil said bank had demanded further security for the payment of said note of Herbert Winsor

Mowry, and that the testatrix, his mother, had indorsed said note, or guarantied the payment thereof, thereby rendering her and her estate liable for its payment; that for the trustee to pay said indebtedness of Herbert Winsor Mowry, as directed by said codicil, will take well towards one-half of the entire estate in his hands as trustee, and that the amount applicable to the general legacies would be entirely inadequate to pay said indebtedness, unless some or all the legacles given in paragraphs 9, 11, and 13, to be hereafter considered, shall be held to be general, and not specific; that at the time said will was executed, in 1894, said Herbert Winsor Mowry was quite heavily indebted, through recent business losses, but when said codicil was added, in 1898, a very large percentage, if not all, of these claims against him, outside of said claim of the Jewett City Savings Bank, had become nonenforceable through the operation of the statute of limitations.

The opinion of the court is sought upon several questions, some of which are involved with others relating to the marshaling of the decedent's estate for the payment of debts and the satisfaction of legacies. We shall therefore answer the questions deemed necessary to be answered, in such order as appears to us most logical and convenient.

The gist of the petitioners' first and second questions, stripped of some of their ramifications, to be considered later, practically amounts to this: Out of what funds is the indebtedness of Herbert Winsor Mowry to be paid, as directed in said codicil?

In our opinion, it should be paid out of the collateral, so far as the same will go. This seems to us to harmonize with the intention of the testatrix, gleaned not alone from the expressions used in the codicil, but also from the scheme of the whole will, and the circumstances existent at the time of the making of the codicil.

When the will was made, in 1894, the chief object of the testatrix's bounty was naturally her only son; but it is noticeable that that bounty was carefully restricted to the personal enjoyment of that son, and that his creditors were studiously excluded from any benefit thereunder, for the son's enjoyment was restricted to the income alone, except as to the residuum, the residuary amount of the estate under the will being little or nothing; and the son's interest in the income was to be forfeited in case of his alienation, incumbrance, or anticipation of said income, or any part thereof, or if by reason of his insolvency or bankruptcy, or by any attachment, levy, or other proceedings by creditors, or other cause whatever, said income, or any part thereof. should, or. but for the proviso now being mentioned, would, become vested in or payable and pass to or for the benefit of any person other than her said son. testatrix at that time clearly intended that none of her estate should be applicable to the

The

payment of her son's debts. After making her will, and before making her codicil, she had put herself into different relations to her son's indebtedness, or a part thereof, by guarantying as further security the payment of his indebtedness to the Jewett City Savings Bank, for the payment of which indebtedness her son had already given the bank certain Slater Cotton Company stock as collateral security. Her son's debts to said bank had thus become her obligation, and, if he did not pay it, she would be obliged to do so. Knowing, as she did, that if her said son's note, thus guarantied by her, was not paid by him during her lifetime, it would be a liability upon her estate, which, like other debts and liabilities of her estate, would have to be liquidated before her estate could be settled, she took steps in her codicil to protect her estate, and to provide how that note should cease to be binding upon it. Her purpose in making her codicil was not to bestow more bounty upon her son, but, as far as possible, to protect her estate from the loss he had probably put upon it. The clear intent from the language of her codicil, reenforced by the scheme or structure of her whole will, was that the trustee, or, rather, the executor under her will (for the same person was both executor and trustee), should take up the note, receive the collateral, and apply it to reimbursing her estate, so far as sufficient. In other words, her estate was to be subrogated to the rights of the bank, for, though she was bound to pay the bank if her son did not do so, yet, as against her son, he would be her debtor, as she would succeed to the rights of the bank.

In Dean v. Rounds, 18 R. I. 436, 446, 27 Atl. 515, 28 Atl. 802, 803, this court said: "Subrogation applies where one party pays a debt for which another is primarily liable, and which, in equity and good conscience, should have been discharged by the latter." In National Bank v. Cushing, 53 Vt. 321, 326, the court said: "It is only in cases where the person paying the debt stands in the situation of a surety, or is compelled to pay in order to protect his own interests, that a court of equity substitutes him in the place of the creditor as a matter of course, without any special agreement. A stranger paying the debt of another will not be subrogated to the creditor's rights without an agreement to that effect." See, also, 24 Am. & Eng. Ency. of L. 194, note 5, and cases cited.

It has been urged that, to construe the codicil thus, much must be read into it that is not there; and it is contended that the debt must be paid by the trustee or by her estate, and that the Slater Cotton Company stock pledged as collateral must be surrendered to the son, to whom it would belong if the note was paid. We fail to see any reasonableness in such a view. Had the testatrix contemplated the delivery of the stock to her son, released from all claim by her estate by way of subrogation upon it, it would have

been very easy to have said so. Her not saying so, but providing that it should be received by her trustee, is a strong indication that her purpose was that it was to be received as any other guarantor paying the note would have received it, viz., by way of subrogation. Should her son have paid the note, he would have received the collateral upon such payment; and if her estate pays it out of the collateral, and a surplus thereof remained after such payment, the son would be entitled to such surplus. If the Slater Cotton Company stock is not sufficient to pay the bank in full, then the testatrix's estate must pay the balance due, the same as would have been the case had there been no collateral, for the testatrix was guarantor for the payment of her son's whole indebtedness to the bank.

While the consent of the son in reducing to money the collateral, to the surplus of which, over and above what is necessary to pay the note it secures, he would be entitled, would doubtless aid the trustee, yet the assent of the son is not necessary in effecting the subrogation.

The codicil provides that the trustee shall pay the debt of the son therein referred to, but there are at least eight different trust funds raised under said will, and, though one person is made trustee of the several trust funds, a different person with equal propriety might have been made trustee of each fund. No particular trust fund is charged with the payment of said indebtedness, and inasmuch as the person named as trustee of all the several trusts is also named as executor, whose duty it ordinarily would be to see to the payment of the debts of the estate, the words of Durfee, C. J., in Boardman, Petitioner, 16 R. I. 131, 142, 145, 13 Atl. 94, 97, are applicable here: "There is no stereotyped rule for administering testate estates. Every such estate should be so administered, if possible, consistently with the law, as to carry out the purposes of the testator, as those purposes appear from the will, interpreted as a whole, in the light of the circumstances in which it was made. The same persons are executors of the will and trustees under it, and it seems to us that its obscurity arises in part from the fact that the draftsman of the will has not always observed the distinction between their capacities, but has sometimes confused and intermixed them so that it is impossible to discern clearly where the functions of the executors were intended to end, and those of the trustees to begin. It is the duty of a court, in construing a will, to bear in mind the circumstances under which it was made, so as to look at it, as far as possible, from the testator's point of view." There being no purpose that we can discover in having the trustee do what the executor is in a very much better position to do, we are of the opinion that the word "trustee" was .nadvertently used instead of the word "executor," which was intended, and that there

* * *

fore the word "trustee," as used in the codicil, must be construed as meaning the executor.

The foregoing seems to us to fully answer the first two questions propounded to us, unless, indeed, the collateral should be insufficient to pay the guarantied indebtedness in full, and, inasmuch as the indebtedness not met by the collateral would be like any other debt of the testatrix, the fund from which it would be paid will be considered later on, when considering the marshaling of the decedent's estate for the payment of debts.

To the third question-as to whether the repairs and taxes on the Cranston farm shall be paid during the life of Herbert Winsor Mowry by the trustee under testatrix's will, or by said Herbert Winsor Mowry-we would say that in and by the second clause of said will, which disposes of said farm, it is expressly provided that "said trustee shall receive and collect all the income arising therefrom and after paying all sums necessary for taxes and expenses and all such other sums as may be required for the proper care and management of said trust property and for the execution of the trusts hereby created to pay over the residue of said income at reasonable periods to my son Herbert Winsor Mowry for his own use during the term of his natural life." Said second clause further provides that "said trustee may allow my said son to live on my farm in the town of Cranston and so discharge his trust as to any income therefrom so long as my said son has not lost or forfeited the same." The testatrix's directions seem to be very explicit that the taxes, etc., are to be paid out of the income of said farm, and that only the net income shall go to her son. The only question, therefore, that can possibly arise, is in case the son himself should live on the farm, as he is allowed to do. Even then, however, it seems to us, the son's living there is only to be in lieu of the net income, and that the son must pay taxes, repairs, etc., on said farm estate.

The son, under said clause, takes an equitable estate for life in said farm, subject in certain contingencies to forfeiture. Gen. Laws R. I. 1896, c. 48, § 8, provides that, "in case of a life estate, the interest of the tenant shall first be liable for the tax." That is a law for the protection of the state, but the testatrix could have made other interests first liable, as between the various interests in her estate, and the state would not have cared, provided the taxes were seasonably paid. The testatrix made no express provision that some other than the life estate should be first liable for taxes and repairs, and it is a well-settled principle of law that, as between life tenant and remainderman, the life tenant is liable for taxes and repairs. Williams v. Herrick, 18 R. I. 120, 123, 25 Atl. 1099, and cases cited. In the case of a tenant for life of land, it is the duty of the trustee to see that the equi

debts, it is competent for the testator to make the real estate, or parts of it, primarily liable in relief of the personalty. Woonsocket Institution for Savings v. Ballou, 16 R. I. 351, 353, 16 Atl. 144, 1 L. R. A. 555.

The first clause in the will at bar is as follows, viz.: "I direct that my just debts and funeral expenses be paid out of my estate." We fail to find in the will any indication of an intention on the testatrix's part to charge her real estate with the payment| of debts in exoneration of the personal property therefrom, and it will be seen that under this will the debts of the testatrix are not expressly made chargeable upon any particular part of her estate. Although at the present day statutes in practically all jurisdictions where our system of jurisprudence obtains have had the effect of rendering all the estate of a deceased person assets for the payment of his debts, and liable at law to the claims of his creditors, yet courts of equity, in administering the estates of decedents, have worked out an order of liability of the different funds, which still obtains where the statutes do not expressly abrogate it, and which governs and regulates the relative rights of the representatives, heirs, legatees, and devisees of decedents. 19 Am. & Eng. Ency. of Law (2d Ed.) 1300. Our statute (Gen. Laws R. I. 1896, c. 203, §§ 25, 26), under the circumstances of the present case, do not abrogate that order; and that order of liability of the legatees and devisees, as amongst themselves, is what we understand the petitioners desire our instructions upon.

As the will in the case at bar, in our opinion, shows no intention on the part of the testatrix to exonerate the personal estate from liability for debts, the testatrix's personal estate, in contradistinction from her real estate, is primarily liable for the payment of her debts. Potter v. Brown, 11 R. I. 232, 234; Calder v. Curry, 17 R. I. 610, 616, 24 Atl. 103; Gould v. Winthrop et al., 5 R. I. 319, 321. The general rule is that the general or residuary personal estate constitutes the natural and primary fund for the payment of the testatrix's debts. 19 Am. & Eng. Ency. of Law (2d Ed.) 1300.

The next class of property liable for the testatrix's debts in the case at bar comprises general legacies and general devises; both standing on a footing of equal liability, and contributing ratably inter se. 19 Am. & Eng. Ency. of Law (2d Ed.) 1312, and cases cited.

Last in order of liability of property owned by the testatrix for the payment of debts are chattels specifically bequeathed and real estate specifically devised, without being subjected to a testamentary charge of debts. Devisees of specific real estate and legatees of specific chattels are generally considered as being in equal degree the object of their testator's bounty, and, conversely, the property given them is all equally liable for the testator's debts. Consequently, when it be

comes necessary to resort to assets thus given, the general rule is that the specific legacies and devises must contribute pro rata; the measure of liability being the value of the respective properties at the testator's death. Farnum v. Bascom, 122 Mass. 282, 285; 19 Am. & Eng. Ency. of Law (2d Ed.) 1313, and cases cited.

Of course each class of assets must be exhausted before resorting to the next class. Thus, the whole of the general or residuary personal estate must be exhausted before resorting to the general pecuniary legacies, and if the whole of that class is not required for the payment of debts, all of that class must contribute pro rata. If all of that class is insufficient to complete the payment of the debts in full, then resort will be had to specific legacies and specific devises, both falling within the same class, and all specific legacies and specific devises contributing pro rata.

To apply the above rules, it is necessary to define the character of the several gifts under the will, so as to determine to what class they respectively belong. All legacies other than that of the residuum are either general or specific. A general legacy is one which does not necessitate delivering any particular thing, or paying money out of any particular portion of the estate. Sch. Ex. & Ad. (2d Ed.) § 461. "A specific legacy," said this court in Dean v. Rounds, 18 R. I. 436, 27 Atl. 515, 28 Atl. 802, "as the term imports, is a gift or bequest of some definite, specific thing-something which is capable of being designated and identified."

The gifts in the 4th, 5th, 6th, 7th, and 10th clauses of this will are clearly general, or general pecuniary, legacies, as termed by some writers, being, respectively, gifts of stated sums of money, without specifying any distinctive money in contradistinction to any other money of like amount.

The real estate consists of the farm in Cranston, and the homestead, the devises of both of which we think are specific. Should any question be made as to the description of the Cranston farm coming under the words "all the real estate of which I shall die seised, possessed or entitled and wherever situated (excepting however my homestead estate hereinafter mentioned)," in clause 2, it seems to us clear that the intent of the testatrix that her son was to have the use and income of the farm for life is manifested by the last sentence of clause 2, where the son may be allowed to live on that farm in lieu of having the income thereof, and after his death the farm is to be sold, and the proceeds to go to his lineal descendants. if any, and, if none, then to the ulterior donees. The intent of the testatrix is the prevailing consideration, and we are of the opinion that the devise of the farm was a specific devise.

The homestead is also a specific devise, or more properly, perhaps, a specific legacy, for