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settlementdefendantlitigationappealprobatewillattachmentgarnishment

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DiCristofaro v. Beaudry, 113 R.I. 313, 320 A.2d 597

Facts

Cecile M. Bernier owned a parcel of real estate and died on March 21, 1966. In her will, she devised all her estate to her two sons, Richard and Ronald, in equal shares. Richard, as the executor, sold the property to Ronald and his wife, who later sold it to the Beaudrys. DiCristofaro, a creditor of Richard, attached his interest in the property and purchased it at a sheriff's sale. The dispute arose when DiCristofaro sought to partition the property, claiming an undivided interest.

The facts are uncontroverted. In 1966, Cecile M. Bernier was the owner of the real estate involved in the litigation. She died on March 21 of that year and in the only dispositive clause of her will, she mandated that: ‘All the rest, residue and remainder of my estate, real, personal and mixed, of which I shall be seized or possessed, or to which I shall be in any wise (sic) entitled at the time of my decease, including all estate, real and personal, over which I shall then have power of appointment, I devise, bequeath and appoint, absolutely and in fee simple, to my children, Richard A. Bernier and Rohald L. Bernier, in equal shares, per stirpes and not per capita.’

Issue

Was the devise of the real estate in Cecile M. Bernier's will specific or general, and did this affect the validity of the sale by the executor?

The defendants attempt to raise the constitutionality of G.L.1956 (1969 Reenactment) s 10-5-2 which permitted the attachment or right to seize property of defendants without notice or by garnishment.

Rule

A general legacy does not necessitate delivering any particular thing, while a specific legacy is a gift of a definite specific thing. The presumption favors that a residuary legacy is general rather than specific.

General Laws 1956 (1969 Reenactment) s 33-12-6 reads: ‘Sale of real estate to effect prompt settlement of estate.-The executor or administrator may sell the real estate of a deceased person despite the sufficiency of the personal property to pay the debts, funeral expenses and the items above enumerated whenever in the discretion of the probate court such action seems desirable in effecting a prompt and efficient settlement of the estate; provided, however, that such authority shall not be given with reference to real estate specifically devised, unless the specific devisees consent in writing thereto.’

Analysis

The court analyzed the language of the will and determined that it was clear and unambiguous, indicating a general devise. The use of general terms in the will did not limit the devise to any specific property, and the presumption of generalness was not rebutted by DiCristofaro. Therefore, the executor was permitted to sell the property without needing the written consent of the devisees.

The language of the will is clear and unambiguous. The devise under the will is general. No portion of the clause describes any particular real estate. The testatrix used only words of generality when disposing of her assets.

Conclusion

The court affirmed the trial court's ruling that the devise was general, allowing the sale of the property by the executor without written consent from the devisees. DiCristofaro's appeal was denied and dismissed.

DiCristofaro's appeal is denied and dismissed.

Who won?

The defendants, Alfred Beaudry, his wife Mary, and the Centreville Savings Bank prevailed because the court found that the devise was general, allowing the executor to sell the property without needing consent.

The court found for defendants, and creditor appealed.

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