Given v. Hilton

• Decision Date: 01 October 1877
• Parties: GIVEN v. HILTON
• Court: U.S. Supreme Court

95 U.S. 591

24 L.Ed. 458

GIVEN v. HILTON.

October Term, 1877

APPEAL from the Supreme Court of the District of Columbia.

The bill in this case was filed by John Emory Hilton and certain other heirs-at-law and next of kin of John P. Hilton against John T. Given and Carberry S. Hilton, his executors and others, to obtain judicial construction of his last will and testament. It prayed for an injunction restraining the executors from selling any portion of the real estate until they should first have applied the personal estate to the payment of debts and the legacies specified in the will, and, in the event of any deficiency, then to sell no greater portion of such real estate than would be sufficient to discharge such debts and legacies.

The court decreed that the debts due by the deceased were to be first paid, then the legacies, and both from the personal estate, if that be sufficient; but if not, then that the real estate be resorted to, but only to discharge any deficiency, and that the residue of said real estate be equally divided among the heirs.

From this construction of the will the defendants appealed to this court.

This will, which was duly attested and admitted to probate, is as follows:——

'In the name of God, amen. I, John P. Hilton, of Washington City, in the District of Columbia, . . . do . . . make and publish this my last will and testament, in manner and form following, that is to say: . . .

'After my debts and funeral charges are paid, my worldly estate, with which it hath pleased God to intrust me with, I devise and bequeath as follows:——

'Item. As soon after my decease as possible, I direct that my debts and funeral expenses be paid out of any portion of my estate which may first come into the hands of my executors hereinafter named.

'Item. Secondly, I direct that all of my estate, except such as is hereinafter otherwise devised and bequeathed, be sold by my executors at as early a day as practicable, upon such terms and conditions as may seem best in their judgment for the best interest of all herein concerned, and that the proceeds arising therefrom shall be divided in the following manner and proportions as they are first herein named, written, and stated, as far as the amount realized from the sale of my said estate will allow, viz.:

'Item. I give and devise unto my king and obedient son, Carberry S. Hilton, and my grandchildren, John Perry Hilton and Harry Slicer Hilton, sons of Carberry S. Hilton, all that part of lot eight (8) of Davidson subdivision of square two hundred and fifteen (215), fronting on 14th Street west, between L and M Streets north, with the improvements; that is to say, one-half of the said lot and improvements to the said Carberry S. Hilton, in fee-simple, and the remaining half as he may choose, to him the said Carberry S. Hilton, in trust for the sole use and benefit of his said children, John Perry Hilton and Harry Slicer Hilton, in fee-simple, to be equally divided between them.

[Here follows a number of pecuniary legacies.]

'Item. I give and bequeath unto my kind, affectionate son, Carberry S. Hilton, all the rest and residue of my estate of which I may die seised or possessed, which is not herein otherwise devised and bequeathed, such as moneys, bonds, stocks, judgments, notes, household furniture, and all personal effects of every description, and not herein otherwise disposed of, for his sole use and benefit and that of his children.

'Item. I direct that the rents accumulating from my estate, until such time as my executors shall have disposed of the same, shall be distributed as follows: After deducting all expens § for repairs, taxes, and insurance, the same shall be equally divided among my four children; namely, Carberry S. Hilton, Ann Terring Smith, John Emory Hilton, and Laura R. Morsell.

'And, lastly, I do hereby constitute and appoint my dear son, Carberry S. Hilton, and my esteemed friend, John T. Given, of Washington City, District of Columbia, to be sole executors of this my last will and testament, revoking and annulling all former wills by me heretofore made, ratifying and confirming this and none other to be my last will and testament, requesting that my son, Carberry S. Hilton, the first-named executor of this my will, that he make no charge for any service he may render in the execution thereof.

'In testimony whereof, I have hereunto set my hand and affixed my seal this nineteenth day of March, in the year of our Lord eighteen hundred and seventy-three.

[SEAL.] 'JNO. P. HILTON.'

Mr. Richard T. Merrick and Mr. William F. Mattingly for the appellants.

Mr. Walter S. Cox and Mr. John J. Johnson, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

The ultimate question in this case is what passed under the residuary clause of the testator's will. It can be answered intelligently only after a careful examination of all the provisions of the instrument, and an ascertainment therefrom of the testator's general scheme. That he intended to make a complete disposition of all his property, leaving none to pass under the intestate laws, is abundantly manifest. He commenced by declaring that, after his debts and funeral charges were paid, he devised and bequeathed the worldly estate with which it had pleased God to intrust him. Next followed a direction that these debts and expenses should be paid, as soon after his decease as possible, out of any portion of his estate that might first come into the hands of his executors. Then followed a direction that all his estate, not otherwise devised and bequeathed (all except a single lot of ground devised to a son), should be sold as soon as practicable, and that the proceeds thereof should be divided in a manner and in proportions described thereafter. Here the real estate and the personalty are commingled and treated as one fund. All is to be converted into money, and all is to be distributed; and, to guard against the least intestacy, and insure that all his estate should pass under his will, by a subsequent disposition he disposed of the rents that might accumulate from his estate, before the executors should sell it, by distributing them among his children. These dispositions are utterly inconsistent with an intention to leave any portion of his estate to descend under the intestate laws; and they accord with the general rule that no presumption of an intent to die intestate as to any part of his property is allowable when the words of a testator's will may fairly carry the whole. Stehman and Others v. Stehman, 1 Watts (Pa.), 466. The law prefers a construction which will prevent a partial intestacy to one that will permit it, if such a construction may reasonably be given, Vernon v. Vernon et al., 53 N. Y. 351; and certainly when, as in this case, the intent to make a complete disposition of all the testator's property is manifest throughout his will, its provisions should be so construed, if they reasonably may be, as to carry into effect his general intent.

We do not mean to be understood as asserting that an apparent general intent to make by his will a complete disposition of all a testator's estate can control...