Merryman v. Long

Bartol, C. J., delivered the opinion of the Court. Richard D. Long, deceased, by his last will and the codicils thereto annexed, bequeathed all his property after the payment of his debts to Oliver P. Merryman, in trust for the use of his wife for life, “ so that she be permitted and suffered to hold and enjoy the same property and estate, and the rents, issues, interest and income thereof, after payment of all ground rents, taxes, insurance, repairs and expenses upon said property, to take, receive and apply to her own use and benefit, &c., and after her death, in trust for the testator’s grand-children.” Oliver P. Merryman was constituted executor of the will, qualified as such, and proceeded to administer the estate. The property of the testator consisted chiefly of improved leasehold estate, appraised at $7335, from which income was received by the executor, during the first year of his administration, which was applied by him to the payment of the debts of the deceased, the funeral expenses, and other expenses of administration. He passed his first administration account showing the manner in which the income had been applied.

The appellee, the widow of the testator, filed her petition objecting to the account, and praying that the same be set aside, claiming that under the will she was entitled to receive the income derived from the property from the time of the testator’s death. ⁵⁴⁶ ■ The Orphans’ Court decided in favor of the petitioner, and from its order the present appeal was taken. The-question upon the appeal is whether, under the will, the-income derived from the property during the first year,, after letters testamentary had been granted, is properly applicable to the payment of the debts of the testator, or-whether it was the duty of the executor, who was also-trustee, to account to the widow for the income, and to sell a part of the corpus of the estate for the purpose of paying the debts. Apart from any question of the payment of debts and expenses of administration, the widow would no doubt be-entitled, under the will, to receive the income from the property from the time of the testator’s death. Angerstein vs. Martin, 1 Turner & Russell, (12 Eng.

Ch. R.,) 232; Hewitt vs. Morris, Ibid, 241; L. Terriere vs. Bulmer, 2 Sim., 18; Sargent vs. Sargent, 103 Mass., 299 ; Evans vs. Iglehart, 6 G. & J., 193 . It appears however-from the administration account, that the whole income-collected by the executor during the first year was required for the payment of debts due by the testator, and the expenses of administration. In such case, it seems to us to-be equitable, and according to the due and proper course of administration,, that it should be so applied.

Such income was unquestionably assets in the hands of the executor, in the same manner as would be hire of slaves, or interest on a bond received by him. Edelen vs. The State,. 4 G. & J., 277 . The property being leasehold devolved on the executor,, and was held by him, subject to the rights of creditors.. The bequest to the use of the widow was of the residue,. after the payment of the debts.

It cannot be said that she had any vested estate in the-property until the administration had been completed, and the estate settled, for which the law allows