Tobiason v. MACHEN, EXEC.

Prescott, J., delivered the opinion of the Court. The sole question involved in this appeal is the construction of the following three paragraphs of the last will and testament of Oliver F. Machen, deceased: “I direct my executrix hereinafter named to pay all my just debts and funeral expenses, as soon after my death as may be conveniently done and after the payment of all my just debts and funeral expenses, I give, devise and bequeath as follows: “1 give devise and bequeath to Helen E. Tobiason, all my right, title and interest in property now known as 919 DeSoto Road Baltimore, Md., absolutely. ²¹⁰ “All the rest and residue of my estate of whatsoever kind and wheresoever situate I give, devise and bequeath to my mother, Mary Virginia Machen, absolutely.” Mr. Machen was a resident of Baltimore City; he executed his will in 1953, at which time the property devised to Helen E. Tobiason who was not related to the testator, was held by him in fee simple, unincumbered; he, thereafter, placed a mortgage upon the same, the unpaid balance due thereon at the time of his decease being $2,789.48; he was unmarried and died in March of 1957, and, at the time of his death, he owned no other property of substance excepting a leasehold interest in several lots (this latter is not certain—one or more of the lots may have been held in fee simple—the uncertainty is due to the manner in which the suit was tried, which will be mentioned later), said leasehold interest being also incumbered by a mortgage; no intimation is given in the record as to the value of the leasehold interest in the lots, or whether the lots are improved or unimproved, but the unpaid balance due upon the mortgages was, approximately, $2700. No evidence was taken at the hearing below; the matter was submitted to the court by stipulation, which consisted of colloquy between counsel and the court. A simple and more satisfactory practice, with less likelihood of misunderstanding and omission of material facts, would have been to have had a formal stipulation or an agreed statement of facts.

The chancellor concluded that it was the intention of the testator to charge the property devised to Helen L. Tobiason with the payment of the unpaid balance of the mortgage due thereon, and that it was not exonerated by the personal estate of the testator; and he signed a decree to this effect. The appellant requests our review of this decree. It should be noted at the outset that when Machen died, the only property he owned was one piece of real estate, devised to the appellant, and certain leasehold property (personalty), which was bequeathed to the appellee under the residuary clause of the will; so, this contest is between a devisee of an incumbered specific parcel of real estate and a ²¹¹ residuary legatee. We shall limit our ruling to the only question presented.

Under the common law, the real estate of a deceased person was not liable for the payment of his simple contract debts; nor for his specialty obligations, unless the heir was expressly bound. Maryland, at an early date (1785) made the real estate of a decedent liable for the payment of all his debts when the personalty is insufficient; and it makes no difference whether he leaves a will or dies intestate, or what provisions his will may contain. Code (1957) Art. 16, sec. 157. It is now well-established law in Maryland that the personal estate of a testator is the natural and primary fund for the payment of debts; and, even when the real estate is expressly charged with their payment, no resort can be made to it, until the personalty is exhausted, unless it has been exonerated by the terms of the will.

Chase v. Lockerman, 11 Gill & J. 185; White v. Kauffman, 66 Md. 89, 92 ; Harris v. Dodge, 72 Md.