In re Estate of Moulton
In re Estate of Moulton
Opinion of the Court
If the order appealed from is proper in other respects, the executors cannot complain that there are other special bequests than that which the petitioner seeks to have applied to the payment "of his claim. If there are other legatees, the remedy of him whose bequest is applied to the claim is to seek contribution from the others. (Probate Act, Sec. 181.)
It is true that it appears that there was due to the estate from the estate of B. F. Moulton, deceased, as a family allowance, the sum of two thousand four hundred dollars; and that in the opinion of one of the executors, “there is every reason to believe that there is ample in said estate of B. F. Moulton to pay such family allowance.” But this was a matter to be decided by the opinion of the Probate Court, and that Court found, as a fact, that there was no available property to pay the expenses of the last sickness of the deceased, which included the claim of the. petitioners.
There is no copy of the will in the transcript. Special legacies are exempted from liability for the payment of debts, “if it shall appear to the Court necessary to carry into effect the intention of the testator, if there shall he other sufficient estate.” (Probate Act, Sec. 180.)
Supposing that there was other sufficient estate,, we can-: not assume error on the part of the Probate Court in adjudging that it was not necessary to exempt the property specially bequeathed in order “to carry into effect the. intention of the testator.”
Order affirmed.
Reference
- Full Case Name
- In the Matter of the Estate of JANE N. MOULTON
- Status
- Published
- Syllabus
- Applying Special Bequest to Payment op Debts.—If the Probate Court makes an order applying the proceeds of the sale of a special bequest, made by the testator, to the payment of a debt, the executors cannot object that there are other special bequests besides that thus applied. Idem.—If a special bequest is applied to the payment of a debt, and there are other special bequests, the remedy of the one whose special bequest is thus applied, is to seek contribution from the others. Idem.—If the real estate has been sold, and if an order is made by the Probate Court applying the proceeds of a special bequest of personal property to the payment of a debt, it will be assumed that the personal estate not specially bequeathed had been thus applied, and that it was necessary thus to apply the proceeds of the special bequest, if the record does not show the contrary. Idem.—When the Probate Court makes an order applying the proceeds of a special bequest to the payment of a debt, and the will is not in the record, it will not be assumed that the Probate Court erred, in adjudging that the intention of the testator could be carried into effect, and yet sell the special bequest.