Cooper v. Sykes

In the absence of any provisions contained in a will, the court would be compelled to follow the statute prescribing' the mode of proceeding in such cases. But in this ''case, the testator having directed that the property shall be held liable in equal proportions for the payment of the debts, and to that end having made a charge upon the property for their payment, the court is bound to follow under section 5974, Rev. Stat., the request of the testator.

The only question therefore, which presents itself is, what proportion shall each of the pieces of property bear to the payment of the debts. Upon the one hand it is claimed that an equal proportion would be one-half .of the debts to be charged upon each of the properties ; upon the other hand it is claimed that the apportionment should be made according to their respective values.

Without determining whether this court would have jurisdiction to construe a will, it is evident that this will needs no construction. The intention of the *247testator must be gathered from the whole will. When he said that the moneys in the hands of his father’s executors shall be equally divided between his wife and his mother, he intended that each should receive one-half, and when, in the same item, he charges the property devised to his wife and to his mother for the payment of the debts in equal proportion, he intended that each should bear one-half of the debts, and did not intend apportionments should be made according to the value of the properties.

I therefore hold that the property in Hamilton County, Ohio, is liable for the payment of one-half of the debts of said decedent; and order that this case be referred to a referee, to ascertain the amount of the entire indebtedness of said estate ; that when said referee has ascertained said amount, said Mary Ann Sykes may within five days from such finding, give a bond to the executor with sureties to be approved by this court, with condition to pay one-half of the debts, to be found due from the estate, with the charges oí administering the same. Upon compliance with this order this petition shall be dismissed. Otherwise an order of sale will be granted and the property ordered to be sold.