American Cannel Coal Co. v. Clemens

• Decision Date: 13 September 1892
• Citation: 31 N.E. 786,132 Ind. 163
• Parties: American Cannel Coal Co. v. Clemens et al.
• Court: Indiana Supreme Court

132 Ind. 163

31 N.E. 786

American Cannel Coal Co.

v.Clemens et al.

Supreme Court of Indiana.

Sept. 13, 1892.

Appeal from circuit court, Perry county; G. L. Reinhard, Judge.

Petition by Joseph P. Clemens, administrator, for the sale of certain real estate. From an order of sale the American Cannel Coal Company appeals. Affirmed.

William Henning and Gilchrist & De Bruler, for appellant. E. E. Drumb, for appellee.

OLDS, J.

Peter Short died testate. By his last will he bequeathed to a granddaughter $200, to a grandson $300, to another granddaughter $300, to another grandson $200, and to his daughter Thresa $1. Following these bequests of stipulated amounts, the will contains a residuary clause giving and bequeathing to his son, Peter Short, Jr., and his daughter, Mary Ann Galhuly, “all the balance or residue of his estate, real and personal, wherever situate, in equal parts, share and share alike.” Further provision is made that, should the legatees to whom the legacies were given die before arriving at full age, the sums so bequeathed to them should go to the residuary legatees. The appellee was duly appointed administrator of the estate, with the will annexed, and filed his petition in this case for the sale of the real estate. The appellant was made a party, it being alleged in the petition that it claimed some interest in the real estate. The facts stated in the petition show the amount of the bequests, the costs of the administration, the amount of the indebtedness owing by the estate, showing that the debts and costs of administration amount to $402.57, legacies $1,001, making a total of $1,403.57, and that the personal estate amounted to $1,092.20, leaving a deficiency of $311.37 in the personal estate to pay legacies, debts, and costs of administration. There was a trial and finding for the appellee, and an order for the sale of the real estate. The question presented is, there being sufficient personal estate to pay the debts and costs of administration, but not sufficient to pay the $1,001 bequests, can the real estate be sold to make assets with which to pay the same? It is a well-settled doctrine that a will must be so interpreted as to give effect to the intention of the testator. It is clearly apparent, from the will in this case, that it was the intention of the testator to dispose of his entire estate, both real and personal, in a like manner, treating all as a common fund, first taking from it certain specific amounts as bequests to his four grandchildren, thus giving to his son and daughter the balance or residue of his estate, real and personal. There is no specific devise of any real estate, but a disposition of the residue of his estate, both real and personal. The intention of the testator is clear that he intended to take from his estate, real and personal, certain bequests, and thus dispose of the amount remaining, whether it be real or personal, or both, to the residuary legatees named. Giving the will this construction, it makes the specific legacies a charge on the real estate; or, in other words, makes the real estate liable for the payment of such bequests. The language of the will is equivalent to saying that he gave to the son and daughter all of his real and personal estate not thereinbefore...