dissenting.
It seems to me there is a better view of the law than that expressed in the carefully prepared opinion of Judge Carter. Justice, the goal of both law and court in litigation, makes payment of the valid unpaid debt of the son to the father a charge against the devise of the father to the son under the will, the law and the circumstances of this case. The residuary clause of the will reads thus:
“The residue of my estate to be divided as follows: One-eighth each to my children, Wm. P. Stanton, Edward C. Stanton, Kate Porterfield, Eliza Stanton, Dora Ragan, Anna Hawe, to my granddaughter, Stasia Hawe; and one-sixteenth each to Estella Stanton and Eugene Stanton, the children of my deceased son, Tim Stanton.”
This testamentary gift is a legacy as well as a devise. It includes personalty as well as realty. It does not use the word “devise.” The notes from son to father were parts of the residuary estate willed to all the children. On sound reasons the supreme court of Nebraska, in harmony with decisions generally throughout the country, adopted the following rule formulated by Chief Justice Morrissey:
“While a legatee retains in his own hands a part of the fund out of which his legacy and other legacies should be paid, he is not entitled to receive from the executor the amount of his legacy without deducting therefrom the amount of the fund which is already in his hands as a *672debtor of the estate.” First Trust Co. v. Cornell, 114 Neb. 126, 206 N. W. 749.
In reaching this conclusion,, the court adopted from Smith v. Kearney, 2 Barb. Ch. (N. Y.) 533, the following unanswerable reasons:
“This right of retainer depends upon the principle that the legatee or distributee is not entitled to his legacy, or distx-ibutive share, while he retains in his own hands ■ a part of the funds out of which that and other legacies or distributive shares ought to be paid, or which is necessary to extinguish other claims on those funds. Aixd it is against conscience that he should receive anything out of such funds without deducting therefrom the amount of the funds which is already in his hands, as a debtor to the estate.”
On principle, as I view the law, there is no rational distinction for applying these reasons to legacies of personal property and not to devises of real estate, unless the legislature has inserted heresies in the statutes. A wrong interpretation does not become right by repetition. Some of the ablest courts have refused to recognize such a distinction and have boldly held on reason and equity that a valid, uxipaid debt owing by a devisee to testator may be made a charge agaixist the devise. The supreme court of New York held:
“The rule of offset of an indebtedness by a legatee, if any, to the estate applies to a devisee as well, and such legatee or devisee must pay the indebtedness before he is entitled to the legacy or devise. Smith v. Kearney, 2 Barb. Ch. (N. Y.) 533; Rogers v. Murdock, 45 Hun, 30; Clarke v. Bogardus, 12 Wend. (N. Y.) 67; Matter of Bogart, 28 Hun, 466; In re Matter of Colwell's Estate, 15 N. Y. St. Rep. 742.” Warren v. Warren, 255 N. Y. Supp. 206.
The following was adopted from the first of the New York cases cited:
“The right of the executor or administrator to retain the whole, or a part, of a legacy or distributive share, in discharge or satisfaction of a debt due from the legatee or *673distributee to the estate, is not only consistent with the soundest principles of equity, but is perfectly well settled.” Smith v. Kearney, 2 Barb. Ch. (N. Y.) 533.
With full knowledge of decisions to the effect that debts of a. legatee to testator may be deducted from the legacy do not apply to devises of real estate or to testate estates, the supreme court of Iowa held:
“Claim of. deceased against devisee may be offset against the devisee’s share of the realty, where the devisee is insolvent and the estate unsettled, notwithstanding no mention was made of the indebtedness of the devisee in the testator’s will.” Schultz v. Locke, 216 N. W. 617 (204 Ia. 1127).
Whether the principle quoted is regarded as an exception to the general rule or as an avoidance of falacious holdings, it is sound in morals, equity and justice. The Nebraska supreme court is not embarrassed by any former decision of its own on the same subject or confounded by technical refinements borrowed from the common law of England. Nothing inconsistent with the spirit of our laws was adopted from the common law by the legislature. I have not discovered anything in our statutes to prevent justice in the present instance. All pertinent legislation and equity powers of courts should be considered together in determining the issue presented. The vesting of title in devisee upon the death of testator is not all the law on that subject. There is another law which says:
“The executor or administrator shall have a right to the possession of all the real as well as the personal estate of the deceased.” Comp. St. 1929, sec. 30-406.
Notwithstanding the vesting of title, the executor gets possession of both personal property and real estate for the purposes of administration. He does not hold possession for himself. He represents all the beneficiaries under the will whether legatees or devisees. He does not lose possession until the distributive shares are determined. This possession is a temporary encumbrance and a limitation on vested title. The county court, with equity powers *674conferred by law, determines each share and the charges against it, if any. To prevent discriminations not authorized by the will or the law, the county court may resort to equity powers. This procedure is inherent in our system of settling estates of deceased persons. It does not involve the courts in law-making and will-making. Those abominations are more likely to result from a different analysis of the problem.
The statute requires the court in the construction of a will to give effect to the true intent of testator so far as it can be collected from the whole instrument, if such intent is consistent with the rules of law. Comp. St. 1929, sec. 76-109; Blochowitz v. Blochowitz, 130 Neb. 789, 266 N. W. 644. Circumstances related to the will may be considered. In re Estate of Hunter, 132 Neb. 454, 272 N. W. 318. The right to make a will may be exercised by any competent person. Knowledge of technical terms like “retainer” and “advancement” is not essential to testamentary capacity. The true intent of testator in the present instance is expressed in clear and definite terms. He meant to give his residuary estate to his eight children in equal shares. He said so. The two notes belonged to that estate. They evidenced property of testator’s estate in the son’s hands— borrowed money. Testator had kept the notes from outlawing. That made them a valid charge against the son who was insolvent. Under the will and the statute the evidences of the debt fell into the hands of the executor. It was his duty to collect the amount due by any lawful method. Collection could only be made for the estate by deducting from the son’s distributive share of the real estate devised to him the amount of his debt. In no other way could all beneficiaries under the will realize the bounties bestowed on them by testator. Discrimination in favor of the debtor would defeat the clearly expressed intent of testator. The executor had only this one way of collecting the debt. The vain and idle expedient of limiting him to a court of law in a separate action on the notes to recover a worthless judgment, under the circumstances, seems to *675me to imply helplessness of equity and the triumph of injustice in spite of the clearly expressed intention of testator. The modern rule of reason and equity announced by the supreme courts of New York and Iowa is, in my judgment, supported by better reasons than the contrary doctrine of some other courts. I think common-law doctrines adapted to former times and conditions should slumber in the desuetude created for them by modern statutes.
Entertaining these views, I adhere to the former judgment of affirmance as the proper disposition of this appeal.
Messmobe, J., concurs in this dissent.