[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 63
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 64 The appellant has no reason to complain of the disposition of the case in the court below. The judgment was more favorable to him than he had any legal right to expect; being only for that part of the mortgage debt not forgiven him by the will of his father. It was neither alleged nor proved by the defendant that the whole moneys due upon the mortgage were not required to pay the creditors of the testator. It was not for the executor to show affirmatively a deficiency of assets, to entitle him to maintain the action.
In any view of the case, the defendant was not in a situation to contest the right of the executor to take proceedings to collect the debt. Whatever may have been the relative rights of the executor and the legatees, Lewis H. and Solomon Stanley, in respect to the mortgage, under the will of Lewis Stanley, the legatees were not questioning the right of the executor to foreclose the mortgage. The defendant could raise no question, except, perhaps, in relation to that part of the mortgage debt which was given to him; and not even that, if there was a want of assets to pay the creditors of the testator.
The personal estate of Lewis Stanley (including the mortgage debt) vested in the executor from the moment of his death. He had absolute central over all of it, including that specifically bequeathed, and the power to sell and dispose of the same for the payment of debts. The executor alone could foreclose the mortgage, or take proceedings for its collection. The direction in the eighth clause of the testator's will, to the defendant to pay to Lewis and Solomon Stanley their respective *Page 65 legacies from moneys secured by his mortgage, and the authority to the legatees to collect and recover the same from him, could not control the action of the testator's representative in collecting and administering the assets of the estate. Nor is it claimed that any such effect would result from the provision, unless the bequests to the Stanleys are specific bequests of the debt, or the mortgage. If they are general legacies, the executor would be bound to pay them; and having the legal title, and the defendant being indebted upon the mortgage, his right to recover can not be questioned.
There is no ground for alleging that the legacies to Lewis H. Stanley and Solomon Stanley are specific. They are not bequests of the mortgage, or of the debt secured thereby, or of any portion thereof. The testator bequeaths to them two several sums of money absolutely; and the subsequent provision for their payment is demonstrative only. They are general legacies, the testator pointing out the fund to satisfy them, and not bequests of a specific debt. Had the defendant fully paid the mortgage, to the testator, in his lifetime, the legacies would not have been adeemed by such payment; which would have been the case, if the bequests had been, in terms, of portions of the mortgage debt.
The intention of the testator is apparent. By the sixth and seventh clauses of his will, he gives to two of his sons, absolutely, the respective sums of $250 and $400. The defendant, another of his sons, is indebted to him over $1000, secured by the mortgage in question. He directs the defendant to pay the legacies to his brothers from the mortgage fund, and bequeaths to him the balance thereof. There is no indication of an intent that the legacies to Lewis and Solomon should fail, if for any reason the defendant refused to obey the direction, or the particular fund pointed out for satisfying them should, from any cause, prove inadequate. The only legal effect of the eighth clause of the will is a bequest to the defendant of the balance of his debt. Courts are not inclined to hold a legacy to be specific rather than *Page 66 general, unless its terms clearly require such a construction. There is nothing in the terms of the bequests to Lewis and Solomon Stanley, or in the entire will of their father, requiring us to construe them as specific; but on the contrary they are general bequests of money, and the estate of the testator is absolutely liable for their payment. (Walton v. Walton, 7 John. Ch. 262; Roberts v. Pocock, 4 Ves. 150; Kerty v.Potter, Id. 750; Deane v. Test, 9 id. 146; Coleman v.Coleman, 2 id. 639; Tifft v. Porter, 4 Seld. 516.)
The legacies being pecuniary and not specific, the legatees could not recover them upon the mortgage. Nor could they recover them from the defendant in an action of assumpsit, as he has never consented to the provision made for him in the will, or promised to pay them. There is no privity between Lewis and Solomon and the defendant, upon which the former could recover. But they have not sought to collect the legacies from the defendant, but look to the executor for their payment. The defendant can not suffer by paying his debt to the executor. Indeed he could pay it to no one else, safely.
The judgment of the Supreme Court should be affirmed.
All the Judges concurring,
Judgment affirmed. *Page 67