Clery's Appeal

• Decision Date: 01 January 1860
• Parties: Clery's Appeal.
• Court: Pennsylvania Supreme Court

35 Pa. 54

Clery's Appeal.

Supreme Court of Pennsylvania.

APPEAL from the Orphans' Court of Philadelphia.

Samuel, for the appellant.—To make a legacy a charge on the real estate, it must appear, by direct expression or plain implication, that such was the intention of the testator: Brandt's Appeal, 8 Watts 202; Montgomery v. McElroy, 3 W. & S. 371; Hackadorn's Appeal, 1 Jones 88; Wright's Appeal, 2 Id. 257; Lupton v. Lupton, 2 Johns. Ch. 623; 2 Jarman on Wills 362, 510; Wright v. Page, 10 Wheat. 204; 1 Roper on Legacies 682; Hepburn v. Snyder, 3 Barr 78.

Here there is a bequest over of the residue of the personal estate; and such a devise or bequest over of the rest, remainder, or residue of any estate or fund, after specific bequests, has always been construed to charge the estate or fund, so devised, with such bequests: Tompkins v. Tompkins, Prec. Ch. 397; Trott v. Vernon, Id. 430; Awbrey v. Middleton, 2 Eq. Cas. Abr. 497; Minor v. Wicksteed. 3 Bro. C. C. 627; Cole v. Turner, 4 Rus. 376; Lucas v. Gardiner, 2 P. Wms 187.

The personal estate is the primary fund for the payment of legacies; and where the testator directs them to be paid by the executor, the presumption is that they are to be paid out of the fund with which he is intrusted: Story's Eq. Jur. §§ 1245-7; Harris v. Fly, 7 Paige 425; Lucas v. Gardiner, 2 P. Wms. 187; Keeling v. Brown, 5 Ves. Jr. 359; Keightly v. Keightly, 2 Id. 328.

A. Thompson, for the appellee.—In determining whether a legacy be charged on land, in case of a deficiency of personal estate, the whole will must be taken together: Gray v. Minnethorpe, 3 Ves. Jr. 105; English v. Harvey, 2 Rawle 305. The intention of the testator is not to be disappointed: Clifton v. Burt, 1 P. Wms. 679. And to reach this, his plan, phraseology, and his general condition and circumstances, pecuniarily and relatively considered, are to enter into the consideration, so far as the same can be reached by a liberal interpretation of his last will, and the extrinsic facts subsequently developed: Doe v. Underdown, Willes 298. The counsel proceeded to argue that from the phraseology of this will, and the circumstances of the testator, it was evidently his intention to charge his legacies upon the real estate. He cited 2 Chan. Cas. 4-5; 2 Fonbl. Eq. 294; Clowdsly v. Pellham, 1 Vern. 411; Ripple v. Ripple, 1 Rawle 386; 2 Vern. 143; 2 Ves. 32, 278; 3 Id. 105; 6 Id. 100, 129; 1 Bl. Rep. 377; 11 Ves. 148; 2 Bulstrode 178; 4 Vin. Abr. 463; 1 Eden 45; 2 Bro. C. C. 48; Clifton v. Burt, 1 P. Wms. 679; Lutkins v. Leigh, Cas. Temp. Talb. 53.

The opinion of the court was delivered by THOMPSON, J.

Were the legacies in the will of James Banford, deceased, intended to be a charge on and payable out of his real estate? The point taken, that the purchaser at the sale by order of the Orphans' Court could not resist a confirmation on the ground of defective title, was waived by the appellee for the purpose of reaching a decision on the question stated; for if that is susceptible of an affirmative answer, there is no ground for this last position.

In the investigation of this question, and as aiding in discovering the intent of the testator, which is the first thing to be done in construing a will, it may be well to observe, that the testator had no lineal heirs; that he made no specific devise of the realty ordered to be sold; and that if chargeable with the legacies, it is so in favour of some, if not all, of whom would be his collateral heirs. Under such circumstances, it is more reasonable to infer a disposition in the testator to distribute his estate by legacies to favourite relatives, than it would be if there were a residuary devise to a child or some other known favourite of his bounty.

His real estate he devised to his widow for life, and the "rest and residue" of his personal estate absolutely. The legacies were to be paid after the death of his widow; and he named in a codicil to his will, two friends to see that all the legacies were paid. At the death of the testator, his personal estate amounted to about $3000, as appears by the inventory and appraisement filed in the register's office by the widow, the sole executrix of the will. This property the widow used and disposed of — none of it came into the hands of the administrator de bonis non. The legacies amount to a trifle over $8000, a sum not far from the value of the real estate.

In the order of the devises and bequests, the life estate in the realty to his widow, comes first; secondly, there is a devise of the remainder in fee, of a house and lot to Rebecca Campbell and her son James. Then follow the several legacies, and "lastly as to all the rest, residue, and remainder of my personal estate, goods, and chattels of what kind or nature soever, I give and bequeath the...