ADMINISTRATION OF EST TES.

[Lucas Circuit Court,

October 17, 1896.]

Haynes and King, JJ.

#### Tucker et al. v. Lungren et al.

1. Subjecting Property to the Payment oee oe the Indebtedness oe the Estate.

An administrator of an estate is not entitled to the proceeds of certain property devised in the will that was sold on partition sale, for the purpose of paying off the indebtedness of the estate.

2. Devise oe Mortgaged Premises.

A Devisee of a mortgaged estate cannot claim exoneration as against a pecuniary legatee.

Appeal.

Haynes, J.

This case comes into this court by way of appeal, and the subject matter relates to a claim of contribution. Primarily, it relates to a claim that is made by the administrator of the estate of Dr. Samuel S. Dungren as to whether he is entitled to the proceeds of certain property for the *578purpose of paying off the indebtedness of the estate that was sold on partition sale.

The facts show that Dr. Dungren died testate in the month of March, 1892. The debtor had been a practicing physician for some years in the city of Toledo, and was possessed of certain accounts and real estate, and also had certain life insurance policies on his own life. The will provided, first:

> “I do desire that all my debts and liabilities, of whatsoever kind, owing by me at my death, shall be paid from moneys derived from accounts due me for medical services rendered.”

And then he wills to his wife certain property; and to his children certain property; among other things, he wills to his wife, Mary F. Dungren, and to his youngest daughter, Virginia, otherwise known as Daisy, “To share in equal proportions, the residence now occupied by myself, together with the appurtenances thereto belonging, said premises being more particularly described as follows, viz: Dot 450, Port Dawrence division, and that part of lot 1,417, Vistula division, of the city of Toledo, Ducas county, Ohio, now standing in my name on the county records and owned by me.” This property at the time was incumbered with a mortgage of $4,000, being a part of the purchase price of' the premises, which was unpaid at the time of his death; and it is in relation to the paying off of this mortgage that this controversy has occured. He then gives to his youngest daughter the proceeds of a policy of insurance on his life for $3,000, in the New York Dife Insurance Co. He then wills to his wife, Mary F. Dungren. and to his youngest daughter, Virginia Dungren, “ in equal proportions, to be by them divided as they may agree, all my personal property of whatsoever nature and kind, save and except as set forth in item 4th to Charles Marshall Dungren, and in item 5 to Virginia Dungren, otherwise known as Daisy. The bequest in this item 6 I desire to cover and include all the residue remaining from debts due 'me, whether shown by my book accounts or otherwise, after having paid all liabilities of my own provided for in item 1 hereof.” He then gives and bequeaths to his five chiidren in equal parts, to share and share alike, 40 acres of land, more or less, in Green county, Iowa, 80 acres in Ducas county, Ohio, and 25 lots in Denk’s addition to the city of Toledo; also to be divided in the same manner the proceeds of a certain policy of insurance on his life in the sum of $10,000 in the Connecticut Mutual Dife Insurance Co. of Hartford, Conn. He also willed that certain real estate that was held in trust by D- S. Baumgardner, should go to his estate, and after the pay. ment of the debts owing by him should, be divided according to law.

The general debts have all been paid, and the accounts have all been collected and exhausted. There is in the hands of the administrator the sum of $1,100 received from the sale of some property, and there is in the common pleas court a certain amount of money arising from the sale of these lots in Denk’s addition. One of the heirs filed a petition *in*partition in the court of common pleas, and such proceedings were had that the lots were sold, and upon those partition proceedings the sale was sonfirmed, and the money received therefrom is now in the hands of the court, or is subject to the order of distribution by the court. The administrator of Dr. Dungren’s estate says that there is due on the notes secured by the mortgage upon the home property $4,000, which has been allowed as a valid claim against the estate., and he prays that this money which is now in the hands of the court be turned over to him to *579apply in the payment of that debt and thus relieve the mortgaged property from the payment of the debt; and the parties holding that property are here asking the same order or judgment. Thus the question which arises here' is whether either the administrator or those parties holding that estate have a right to call upon these five heirs who own this Uenk property for contribution for the payment of that mortgage. And there is also another question, as to whether the money that was devised to the different heirs, arising from the life insurance, which money has been collected and divided among the respective heirs, shall be subject to contribution, so far as is necessary, for the payment of that $4,000 mortgage.

It will be seen that by the terms of the will Dr. Lungren gave to his wife and Virginia the homestead property by name; that at the time he made his will that property was subject to the purchase money mortgage, and that his interest in it was the equity of redemption. He owned these lots in Denk’s addition, and they were free from incumbrance when he'willed them to his five children absolutely. It is claimedhere, first, that there being debts owing by the estate, to-wit: the debts arising upon the notes secured by this mortgage, the debt itself being the principal and the mortgage being given to secure it, that the administrator has a right to the- proceeds of all property belonging to the decedent for the purpose of paying off that debt, and that inasmuch as there is no general fund in his hands, the general estate having been exhausted, he has a right to have the life insurance money of $10,000 placed in his hands to use for the purpose of paying off that mortgage; that that money having been distributed among the heirs, he has a right to call upon them for contribution, and in like manner he has a right to have this money which arises from the sale of these lots, at least so far as is necessary to reimburse the insurance fund, paid into his hands for the purpose of paying this debt. We were cited by counsel for administrator to Jarman on Wills, as laying down the general rule in regard to charges on estates. He says, page 1440 :

> “As to the general right of a devisee, in cases not affected by the statute, to be exonerated from an incumbrance to which the testator, either before or after the making of his will, has subjected the devised estate, there cannot, at this day, be any doubt or controversy. And it is clear that the legatee of any chattel, specially bequeathed has the same right.

> “ Thus where a testator holding lands for which he received rent and paid a head-rent, died leaving arrears of rent due to him, which he specifically bequeathed, and also arrears of head-rent due from him, it was held that the latter must be paid out of the general personal estate in exoneration of the specific legatee.

> “So a sum due from the testator to his lessor, in respect óf a renewal granted during the testator’s lifetime, is payable out of the general personal estate, in exoneration of a specific legatee of the leasehold. And the specific legatee of leaseholds, on which the testator had covenanted to build, has been held entitled to have the covenant performed at the expense of the general personal estate, although the time for performing the covenant has not expired. But where a lessee was liable for dilapidations at the time of his death, it was held that his specific legatee must himself bear the cost of repairs.

> “Under a gift of leaseholds ‘free from all outgoings and payments except- the annual and other rent,’ it was held that the legatee was en*580titled to have only all outgoings up to the time of his taking possession cleared out of the general estate.

> “Again, if a testator bequeaths a watch or a painting, and it turns out that at his decease the watch or painting is in pawn, the legatee is entitled to have it redeemed. And by parity of reason if a testator specifically bequeaths a legacy to which he is entitled under a will, and after-wards assigns such legacy by way of mortgage, the legatee may claim to have the mortgage debt liquidated in exoneration of the subject of gift; and it would be immaterial that the mortgage deed contained a power of sale, by virtue of which the mortgagee might have absolutely disposed of the property and thereby have defeated the bequest; for in all these cases, the mortgage being considered to have been created by the testator for his own convenience, and not for the purpose of subtracting so much-from the bequest, the act is not, as between the parties claiming under the will, an ademption *pro tanto,*and cannot, without at least equal impropriety, be termed a partial revocation, though the latter designation has been commonly applied to it. If, therefore the testators right of redemption remain unbarred at his decease, the devisee or legatee is entitled to require that it shall be exercised for his benefit. And if the executor fails to perform this duty the legatee is entitled to compensation.”

Jarman proceeds to discuss the questions generally, and comes to mortgaged property, and he says this, on page 1443:

> “Whether the will indicates an intention that the devisee or legatee shall take *cum onere\*and, if not, then, secondly, out of what fund is he entitled to claim exoneration. The courts require very clear expressions preferably in order to fasten the incumbrance on the devisee or legatee of the propperty in question.

> ¡ “Thus ft is settled that a devise of lands, subject to the mortgage or incumbrance thereupon, does not so throw the charge on the estate, as to exempt the funds which by law are preferably liable; the testator being considered to use the terms merely as descriptive of the incumbered condition of the property, and not for the purpose of subjecting his devisee to'the burden — a construction which, though well established, it is probable generally defeats the intention.”

But proceeding in Jarman beyond the parts cited by counsel we find this.

> “Suppose, then, that the will contains no intimation of an intention to the contrary, the devisee of a mortgaged estate is entitled to have the incumbrance discharged out of the following funds: 1st. The general personal estate; 2d. Bands expressly devised for the payment of debts ; 3d. Bands descended to the heir; 4th. General pecuniary legacies; and 5th. Bands devised charged with debts: and if the charge happened to reach the last class of estates, and if the devised mortgaged estate were included therein (as it of course would be if the charge were general), the devisee in question would be liable to contribute ratably with the other devisees. But the devisee of a mortgaged estate is not entitled to have it exonerated out of personalty specifically bequeathed — a point which was determined in *O'Neal*v. *Mead,*where a testator having devised lands, which he had mortgaged to his eldest son in fee, and bequeathed a leashold estate to his wife, it was held that the leasehold premises, being specifically bequeathed, were not liable to pay off the mortgage. And’ a *fortiori*a specific legatee of incumbered leaseholds cannot call upon a specific legatee of unincumbered leasehold to contribute toward the liquidation of the mortgage debt affecting the former exclusively; and a *581direction that the mortgage money shall be paid out of the general personal estate would not confer such right.”

That clearly shows that these lands lying in Uenk’s addition could not be used to pay off this mortgage.

> “It is clear, also, that the devisee of a mortgaged estate cannot claim exoneration as against pecuniary legatees,”

I have read simply to show what the doctrine is as laid down by Mr. Jarman. However, we think there can be no question that this question is decided by the supreme court of this state. The case cited by counsel, 4 O, S., page B33 — was cited for the purpose of showing that under certain circumstances the estate would have to pay off the debt. Under the facts, correctly understood, that is not inconsistent with, the rule laid down in the case to which I shall now *refer*— Glass *v. Dunn,*et al., 17 O. S., 413. William Dunn, in 1858, died, leaving a will by which he devised to each of his children of whom there were six — Thomas, Samuel, Caldwell, William, and Jane — a specific tract of land and to his son Robert the rents or proceeds of a 100 acre tract for his life support. A part of that devised to Caldwell and William was incumbered with a mortgage of $1,500. The will also contained pecuniary bequests, viz.: $1,500 to Mary Caldwell Glass, $1,000 to Dphraim McCleary, and *$1,000*to the children of Margaret Kennon. Then alter several other dispositions of property which need not be specified here the will provided as follows:

> “It is my will and I direct my executor to make sale of my personal property and the farm in Guernsey county, on which my son Samuel now resides, containing 112 acres : also, my mill property with the land attached thereunto, situated on Wheeling creek, Belmont county, Ohio; and further, I direct that, should- the suit now pending in the case trying my title to the lands held by me in Union county, Ohio, be decided in my favor, then, in that case, I direct my executor to make sale of the same. The proceeds arising from the sale of the several tracts herein, ordered to be sold, together with the proceeds of my personal property, to be applied to the payment of my debts and the bequests herein made.

It is my will, and I do hereby direct my executor that, immediately after the decease of my son, Robert Dunn, he make sale of the one-hundred acres in Guernsey county, Ohio, left by me for his use; the proceeds arising from the sale thereof: to be divided equally between my own eight sons and daughters herein named, or to the heirs, together with all remainders or excess, after paying the within and aforementioned bequests by me herein made.”

The statement of the case further proceeds:

> “Thepropertyspecifiedin clause No. 13 has all been sold by the executor, and the proceeds thereof, together with all other personal assets of the estate, have been exhausted in payment of debts, leaving nothing to apply on the legacies, and leaving unpaid debts to the amount of two or three thousand dollars. Among the debts so paid by the executor was that of $1200 secured by the mortgage aforesaid. Robert Dunn is still alive, and the 100 acre tract so devised for his life support has not yet been sold. The present action is brought by Mary Caldwell Glass and her husband, against the executor, devisees, and legatees aforesaid, to marshal the assets of the estate,. The petition and the answer set forth substantially the facts aforesaid. The object of the' action is to compel Caldwell Dunn and William Dunn to refund the amount so paid upon the mortgage, to be used as a fund for the payment of debts and legacies; *582to have the land so charged with the life support of Robert, sold, subject to said life support, and the proceeds applied in like manner to the payment of debts and legacies; and to obtain from the several devisees a *pro rata*contribution to the legatees, so as to equalize the loss arising from the deficiency of assets for payment of debts and legacies.”

*C. T. Johnson*and *W. H. A. Read*for Administrator..

*Basset, McLellan and Wachenheimer*for the Heirs.

Welch, J., says in delivering the opinion:

> “The plaintiffs are clearly entitled to the relief they seek against Caldwell and William Dunn, so far as regards the' mortgage debt. It seems to be well-settled law, that a specific devisee of land incumbered by a mortgage, cannot, as between him and general pecuniary legatees — and a *fortiori*he cannot, as between him and specific legatees or devisees — avoid the burden of paying the mortgage debt. He takes the land *cum onere,*unless the debt can be satisfied out of the personal assets, after payment of debts and legacies, out of land descended to the heir, or from some fund provided in the will for its payment. As between him and his codevisees and legatees, he takes only the equity of redemption in the land devised, and must himself pay the mortgage debt if it is to be paid. It follows that the amount so paid by the executor upon this mortgage must be refunded by Caldwell and William, in proportion corresponding with the value of the land of each, to be applied by the executor in payment of the debts and legacies.”

We think that the decision and the law of the land require us to dismiss the cross-petition of Mr. Johnson. We think the parties that own or did.own the lots lying-in Lenk’s addition are entitled to the fund that arises from the sale of tha.: property, and that without being required to make any contribu, tion either to the administrator or Mrs. Lungren or Virginia who hold this homestead property. The decree may be drawn in accordance with that view. The administrator, will pay the costs of this suit in this court.