In re the Estate of Sutton

Citations

• 11 Del. Ch. 460
• 97 A. 624
• 1916 Del. Ch. LEXIS 37

Syllabus

<p>The specific and residuary devisees under a will are each entitled to have the personal property applied to the payment of mortgages on the property devised, and a general direction in the will for the payment of testator’s debts is immaterial.</p> <p>Among specific devisees, all must contribute pro rata, for the payment of the debts of the decedent.</p> <p>At common law, all devises of land were deemed to be “specific” whether the land was identified in the devise or passed under the residuary clause; the reason being that testator could only devise what he had at the time of making his will, and that by specific mention of some land he inferentially identified the other land which passed under the residuary clause.</p> <p>Testator, who at the date of his will and at his death owned seven parcels of land each incumbered by a mortgage made by him, directed his executors to pay his debts, and gave specifically two parcels to one for life with remainder over, and gave specifically another lot to a devisee, and all the residue to the first remainderman, and, in addition to the mortgage debts, left general unsecured debts, and comparatively no personal property. His executors petitioned to sell land to pay his debts, which the devisee of the single lot opposed. Held, in view of the statute making a will speak from the death of a testator, that the gift under the residuary clause was general and not specific; there being no distinction between real and personal property as affected by the residuary clause.</p> <p>Under a statute providing if any devisee contributes his proportional part toward the payment of the decedent’s outstanding debts, no order shall be made for the sale of the premises so given to such devisee, where land specifically devised is sold for the payment of the debts of decedent, and the proceeds of such sale are more than the devisee’s just proportion of the land toward the payment of such debts, he may compel contribution from the owner of other l