Ashkenazy v. Ashkenazy's Estate
140 So.2d 331 (1962)
Jeane and Saul Ashkenazy
bought a house and got a mortgage.
They then got divorced. In
the divorce settlement, the house went to Saul and he was to keep up the
Saul made a will giving the
house to Jeane, some other property and a car to someone named Fine, and
the rest, residue, and remainder to his nephew David.
Saul then used the property
willed to Fine and some of the residual estate to secure a bank loan.
Saul died. Jeane asked to
have the house, Fine wanted the property, and David wanted the remainder. No one wanted to pay off the bank loan.
The Probate Court ordered the
mortgage attached to the house given to Jeane should be paid by Jeane, and
left the property given to Fine and free and clear of liens. The money to
pay off that loan would come from the residual estate (the part David
Jeane appealed, saying that
the will claimed she should get the house, not that she should get the
The mortgage should be paid
out of the residual.
The bequest was a specific
David appealed, saying that
the loan should be paid out of the money willed to Fine, since that was
what was used as collateral for the loan.
The Appellate Court partially
The Appellate Court
overturned the Trial Court's decision that Jeane should get the mortgage
along with the house.
David unsuccessfully argued
that the only thing Saul owned was his interest in the property and
therefore he could not will what he didn't have.
The Court found that under
the common law, the specific devisee of real property is entitled to
have the mortgage on the devised property paid at the expense of the
residue of the estate unless the will expressly shows a contrary intent.
That's known as exoneration.
For similar reasons, the
Appellate Court affirmed the Trial Court's ruling that the bequest to
Fine should be similarly exonerated.
Conversely, the Uniform
Probate Code ¤2-607 does not allow
It is important to know if
your jurisdiction has adopted the Uniform Probate Code or if it still follows the common law.