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 mortgage payments.
  • 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 got).
    • Jeane appealed, saying that the will claimed she should get the house, not that she should get the mortgage.
      • The mortgage should be paid out of the residual.
      • The bequest was a specific devise.
    • 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 reversed.
    • 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 for exoneration.
    • It is important to know if your jurisdiction has adopted the Uniform Probate Code or if it still follows the common law.