Duncan v. Wallace

• Decision Date: 20 March 1888
• Docket Number: 12,148
• Citation: 16 N.E. 137,114 Ind. 169
• Parties: Duncan et al. v. Wallace
• Court: Indiana Supreme Court

16 N.E. 137

114 Ind. 169

Duncan et al. v. Wallace

No. 12,148

Supreme Court of Indiana

March 20, 1888

From the Dearborn Circuit Court.

Judgment reversed.

J. K Thompson, J. E. McDonald, J. M. Butler and A. L. Mason, for appellants.

G. M Roberts and C. W. Stapp, for appellee.

OPINION

Elliott, J.

The controversy in this case grows out of the will of William Duncan, deceased. Omitting the formal parts, that instrument reads thus:

"Item 1st. I give and devise to my beloved wife the farm on which we now reside, situate in Washington township, Dearborn county, Indiana, containing about eighty-two acres, during her natural life, and all the stock, household goods, furniture, provisions and other goods and chattels which may be thereon at the time of my decease, during her natural life as aforesaid, she, however, selling so much thereof as may be sufficient to pay my just debts; and at the death of my said wife, the real estate aforesaid I give and devise to my sons John W. Duncan and James Duncan and their heirs; if, however, either of my said two sons should die before the decease of my said wife, leaving no children living at the decease of my said wife, then the share of said property above devised to such deceased son is hereby devised and bequeathed to my son William Duncan and his heirs.

"Item 2d. I devise and bequeath to my son William Duncan and his heirs four hundred dollars, to be paid five years after the decease of my said wife.

"Item 3d. I devise and bequeath to my two daughters, now married to Mathias Davis and W. W. Wilson, two hundred dollars each, to be paid seven years after the decease of my said wife.

"Item 4th. I devise and bequeath to my two daughters, now minors, Catharine Duncan and Temperance Ann Duncan, each six hundred dollars, the oldest daughter to receive her six hundred dollars two years after decease of my said wife, and the youngest to receive her six hundred dollars four years after the decease of my said wife.

"Item 5th. I do hereby nominate and appoint my beloved wife guardian of my minor children until they become of the age of twenty-one years.

"Item 6th. I do hereby nominate and appoint my beloved wife, Catharine Duncan, and John W. Duncan executors of this, my last will and testament, hereby authorizing and empowering them to compromise, adjust, release and discharge, in such manner as they may deem proper, the debts and claims due me. I do also authorize and empower them, if it shall become necessary in order to pay my debts, to sell by private sale, or in such manner, upon such terms of credit or otherwise as they may think proper, all or any part of my real estate, and deeds to purchasers to execute, acknowledge and deliver in fee simple."

The complaint of the appellee sets forth the will, avers that the widow of the testator elected to take under the will, that the testator left no other personal property than that taken by the widow, and that the only personal estate of which he died the owner was taken by her under the provisions of the will.

The appellee contends that the legacy to Catharine Duncan is a charge upon the real estate of which the testator died seized, and the trial court sustained this view. The question for our decision is, was this holding correct?

It is the cardinal rule in the construction of wills that the intention of the testator must be ascertained and carried into effect. This fundamental rule prevails where the question is whether a legacy constitutes a charge upon lands as well as in other cases. Where it appears from the will, either by express words or by fair implication, that it was the intention of the testator to charge the land he gives to a devisee with the payment of specific legacies, the devisee will take it subject to that burden.

In determining whether it was the intention of the testator to charge legacies upon land, the words of the will are, of course, to be chiefly regarded, but assistance may be derived from circumstances existing at the time the will was executed. We do not mean that parol evidence may add words to the will or subtract words from it, but we do mean that parol evidence is competent to prove the situation and condition of the testator and his property. Pocock v. Redinger, 108 Ind. 573, 9 N.E. 473.

To illustrate, if a testator should have no personal property whatever, and of that fact have knowledge, parol evidence may be given to prove these facts in a case where legacies are specifically bequeathed. In this case we agree with appellee's counsel that, to the extent indicated, parol evidence is competent, and should be considered in construing the will.

Where a testator gives legacies and so disposes of all his personal property that it can not be made available for the payment of the legacies, the natural presumption is, that he intended to charge the land with the payment of the legacies, since a different rule would attribute to him a purpose to make a gift in appearance and not in reality. This result however, can only take place where it is clearly apparent that the personal property was, by the act of the testator himself, placed where it could not be made available for the payment of legacies. So, where a testator has no personal property at the time he executes a will and bequeaths specific legacies, the reasonable presumption is that he intended to charge them on the land, for it is not to be presumed that he did no more than make an empty show of giving a bounty to the legatees. But this presumption does not prevail where there is personal estate at the time the will was executed, although it may subsequently be lost to the testator. In discussing the general subject, it was said by Folger, C. J., that: "It is assumed that no man, in making a final disposition of his estate, will make a legacy, save with the honest, sober-minded intention that it shall be paid. Hence, when from the provisions of a will prior to the gift of legacies it is seen that the testator must have known that he had already so far disposed of his personal estate as that there would not be enough left to pay the legacies, it is...