The legacies given in clause 7 of the will were not adeemed by the sale of the Fort Pleasant Avenue property.
The purchase price was not fully paid, and, by reason of the mortgage back, the testatrix remained always invested with a legal title to the land. Searle v. Sawyer,127 Mass. 491. The balance due her, and evidenced by the mortgage note, no one was originally under any personal obligation to pay. The declaration of trust was so referred to in the note as virtually to become a part of it, and excluded any personal liability on the part of the trustees. The testatrix could only look to the funds and property of the Riverview Heights Company, and it does not appear that it owned anything except what it acquired by the purchase from her.Shoe Leather Nat. Bank v. Dix, 123 Mass. 148, 151. A few months before her death she obtained for a consideration a guaranty from one of the trustees; but if the legacies were not adeemed by the sale, they were not adeemed by her thus adding to her security for the balance of the purchase money. *Page 690 The land sold comprised one parcel which she had conditionally devised to the First Baptist Church, and another which she had directed her executor to sell at the first favorable opportunity for the purpose of raising money to pay certain bequests. The sale rendered it impossible for the First Baptist Church to fulfil the conditions of the devise to it. That devise was therefore clearly revoked by the conveyance to the trustees. But the sale facilitated the payment of the legacies. It provided a sufficient fund to meet them, if it can be used for that purpose; whereas the will contemplated a possible deficiency. This fund was nothing but a charge upon the land described in clause 7, and on that which had been the subject of the revoked devise to the church; or possibly a charge upon these lands and other property of the Riverview Heights Company. It has not been contended by any of the parties before us that there is not enough of the land described in clause 7, remaining unsold by the trustees of the Riverview Heights Company and subject to the mortgage lien, to make it certain that the amount necessary to satisfy these legacies (about $25,000) can be collected upon the note; and for the purpose of this decision the mortgage may be regarded as if it rested solely upon such land.
A total ademption by acts of a testator occurs in two cases only: (1) when he gives in his lifetime to a legatee what he had left him in his will; or (2) when before his death he so deals with the subject of the bequest as to render it impossible to effect the transfer or payment which the will directs. In the case at bar, it was admitted by the counsel for all the residuary legatees who appeared at the hearing, that none of the legacies provided for by clause 7 were paid by the testatrix. The finding shows that her dealings with the subject of the bequest have changed its form but not its substance. The same land remains under the power of her executor. He can use it to satisfy the legacies, not indeed, in the first instance, by selling it, but by requiring its present owners, as a condition of their retaining title, to pay to him a sum sufficient to discharge them.
In Arnald v. Arnald, 1 Brown's Ch. Ca. 401, 2 Dickens, *Page 691 645, Lord Chancellor Thurlow held that a devise to trustees to sell and pay the proceeds to certain beneficiaries was rendered inoperative in their favor by a sale of the land subsequently made by the testator himself. That was a case where a conveyance of the legal title to one, while ambulatory and so in the nature of an undelivered deed, was revoked by a later conveyance of the legal title to another, by a deed which was delivered. The will was a conveyance; the deed was a conveyance; and, after the deed was delivered, the subject of the testamentary conveyance was absolutely and forever removed from the control of the testator. In the case at bar, the legal title was never devised to the executor. He had merely a power. The object of the power was a conversion, and as to any question of succession under such a will, the conversion is to be regarded as if made at the instant of the testator's death. Bates v. Spooner,75 Conn. 501. The land devised, also, remained by the act of the testatrix charged in favor of her or her estate with a payment sufficient to meet the legacies. The charge made by the will was in effect continued by the deed, and the only real change is that the executor now is to sell or collect a note secured by a mortgage of the land, instead of selling the land itself.
The adopted daughters of the testatrix have the largest legacies under the clause in question. In determining whether they or the residuary legatees are to profit by the mortgage note, the reason of the rule that heirs are not to be cut off by doubtful implication supports their claim.
They are also given life interests in "the income from any and all loans secured by mortgage upon real estate." When the will was executed, and also at her death, the testatrix owned certain mortgage loans of this description. The daughters assert a right either to the income from the mortgage note of the trustees of the Riverview Heights Company, or if that be disposed of to pay legacies, then from whatever may be derived from any balance not required for that purpose, that may remain.
A loan, strictly speaking, whether secured or unsecured, *Page 692 only exists when something has been lent to one who is under an obligation to return it. That may, in a secondary sense, be called a loan secured by mortgage, which is merely an indebtedness of the vendee for all or part of the price of property sold, secured by a mortgage back to the vendor. Day v.Cohen, 165 Mass. 304, 43 Northeastern Rep. 109. To describe by such terms a mortgage in favor of a vendor upon land sold, when there is no one personally indebted or liable for the sum secured, would be to employ them in a sense still more unreal and remote. When a word used in a will has a strict and primary meaning and also a secondary meaning, it is a sound rule of construction that it is to be given the former, unless the context indicates that the testator intended otherwise; if thus understood, the provisions of the will, as applied to his estate, would have an intelligible and sensible import. Leake v. Watson, 60 Conn. 498, 508. There is nothing in the other provisions of the will before us to qualify the primary meaning of the words employed in stating this legacy. On the contrary, it is plain that the testatrix did not contemplate leaving at her death mortgages on any of the Fort Pleasant Avenue lands. Part she had devised to a church, and the rest she had directed to be sold for a specific purpose, to effectuate which prompt payment in cash would be required.
Nor are the daughters entitled to the income from the railroad debenture certificates, under the bequest to them of the income of all the stocks of the testatrix, in any and all corporations. These certificates were not stocks. They were only convertible into stocks at a certain time subsequent to her decease, at the option of the holder; but if he did not so elect, they would remain what they originally were, — certificates of indebtedness for money borrowed. These legatees could not claim the interest which might be collected upon them before that time arrived, for it would not be income on stocks. They could not, after the time arrived, in case a conversion were made, claim the dividends on the stock received in exchange, for it should not be stock which ever belonged to the testatrix. *Page 693
The legacy to the Baptist Church of Cromwell is payable only out of the proceeds of a sale of the Hartford house. Its position in clause 9, in immediate juxtaposition before and after with legacies only so payable, taken in connection with the use of the word "also" sufficiently indicate such to have been the intent of the testatrix.
The Superior Court is advised that (1) the legacies given by clause 7 are payable, and payable only, out of whatever may be collected on or received from the mortgage note secured on the Fort Pleasant Avenue land; (2) any balance remaining from such collection or receipts falls into the residuary estate; (3) the debenture certificates of the New York, New Haven and Hartford Railroad Company are also part of the residuary estate; and (4) the legacy to the Cromwell church is payable only from the avails of the Hartford house.
No costs will be taxed in this court in favor of any party.
In this opinion the other judges concurred.