In re Estate of Woodworth

Citations

• 31 Cal. 595

Syllabus

<p>Assets of Estate at Common Law.—Under the common law, where no different order is prescribed in the will, the assets of the deceased, for the purpose of paying the debts of the estate, will be marshalled, and the debts paid out of them in the following order : First, the personal estate not specifically bequeathed, or expressly or by implication excepted ; second, lands expressly devised for the payment of debts; third, lands descended to the heir; fourth, lands devised.</p> <p>Idem.—This order of marshalling the assets is not to be disturbed by the fact that lands are devised subject to a mortgage thereon.</p> <p>Idem.—The personal estate is first to be applied and exhausted, even for the payment of debts charged upon the real estate by mortgage, if the debt so charged was the personal debt of the testator.</p> <p>Idem.—It requires express words in the will, or an intent clearly manifest upon an examination of the entire will, to disturb this order.</p> <p>Idem.—The making of a specific bequest is regarded as indicating an intention to discharge the particular personal property specifically bequeathed from the debts of the testator.</p> <p>Idem.—A specific bequest of personal property is the bequest of a particular thing or money specified and distinguished from all others of the same kind, as of a horse, or money in purse.</p> <p>Specific Bequest.—A bequest of “ all my personal estate * * * ’* is not a specific bequest, and under the common law such bequest would not discharge the personalty from being first applied to the payment of the debts.</p> <p>Payment of Debts of Deceased.—Under our law generally the personal estate which comes into the hands of the executor is first chargeable with the payment of the debts of the deceased.</p> <p>Idem.—The rents and profits of the real estate accruing subsequent to the death of the testator, are not personal property in the hands of the executor to be first applied to the payment of debts in exoneration of the general