The transaction between Lena Ward and the executor in effect gave to Lena the land devised to her, and settled her claim against the estate for the sum of $300. This settlement was approved by the Court of Probate, and we cannot say from the facts appearing in the record that the claim as first presented against the estate was an unjust claim, within the meaning of the sixth clause of the will.
The fourth and fifth clauses of the will treat the real estate therein mentioned as personal property, and the directions to sell create a complete equitable conversion of the land into personal property.
The fifth clause fairly expresses the intention of the testator to give to his two brothers the residue of his personal property, including the balance of the proceeds from the sale of real estate, mentioned in the fourth clause, after paying the bequest of $200 to the Methodist society of Gaylordsville.
The bequest to the two brothers, Charles and Christopher Talbot, was one to them individually and not to them as a class. By operation of § 541 of the General Statutes, the legacy to Charles Talbot was in legal effect a gift to him, and to his issue in case he should not survive the testator; the legacy therefore did not lapse by reason of his death.
By the second clause of the will the testator gives to his nephew, John Talbot, "all my real and personal property, situated in Gaylordsville, Litchfield county and State of Connecticut." *Page 145
In view of the facts appearing in the record, we think the testator intended by "personal property" to include the debts due him from residents of Gaylordsville. These debts appear to be all the personal property he had, except his household furniture and the money in bank mentioned in the inventory. His nephew, John Talbot, was the only one of his relatives who had lived near him, and to whom he made any specific gift. The mortgage debt, which forms substantially the whole of the debts due from residents of Gaylordsville, was secured by mortgage on land adjoining land devised to his nephew, and the intent to give him that mortgage debt in connection with the land adjoining that securing the debt, might be expressed by the phrase "all my real and personal property situated in Gaylordsville." It is true that ordinarily, and in the absence of any modifying legislation, thesitus of a debt follows the person of the creditor. In the case of mortgage debts especially, the residence of the debtor, as well as the place where the mortgage securities are held, have in some jurisdictions been treated for certain purposes as thesitus of the mortgage debt. But in common language, a debt is not infrequently spoken of as being property at the residence of the debtor, especially when secured by land there situate. The question before us is not one of legal situs, but of what the testator under the circumstances of this case meant when he spoke of "all my real and personal property in Gaylordsville."
The personal property remaining in the hands of the executor for distribution should be divided as follows: 1. The choses in action, to the nephew John Talbot. 2. Two hundred dollars to the Methodist Society of Gaylordsville. 3. One half of the remainder to the brother Christopher Talbot, and the other half, in equal parts, to the children of the brother Charles Talbot.
The Superior Court is advised to render judgment in accordance with the above opinion.
No costs will be taxed in this court.
In this opinion the other judges concurred.