Pigford v. . Grady

Manning, J. The contention of the plaintiffs is, that the testator’s estate being insufficient to pay his debts, the expenses of administration and the pecuniary legacies, there ought to be a proportionate abatement of the pecuniary legacies, in order that there might be some of the “all other” property, bequeathed to them by Item 7, or that, by the use of the word “cash,” after the number of dollars in each of the pecuniary bequests, the testator’s intention was to charge the legacies upon a particular fund, and this fund being exhausted, the general personal estate could not be called upon to malte up the deficiency. We do not agree with the plaintiffs in either contention. It is not observable from the will that the testator charged the pecuniary legacies against any particular fund; the word “cash” does not indicate this, but rather emphasizes that the legacies are to' be paid in money generally. 'It may be, as is frequently the case, that if the testator could have foreseen, at the date of the will, the condition of his estate at his death — the time when his will would take effect — he might have written it differently. “The question is not what he might possibly have intended, if he had known that case that happened to exist at his death; but what is to be inferred from the will was his intention when he made it.” Ruffin, C. J., in Perry v. Maxwell, 17 N. C., 487 (499). The testator’s estate consisted entirely of personalty, and, in our opinion, the pecuniary legacies are made a charge generally upon his estate; and by Item 7 he disposed of, to the plaintiffs, all his other property not necessary for the payment of these legacies, and that this item is, in effect and by intention, a residuary clause. Our conclusion, we think, is supported by the .following decisions of this Court, and the text-books of accepted authority: McGuire v. Evans, 40 N. C., 269; Fagan v. Jones, 22 N. C., 69; Graham v. Graham, 45 N. C., 291; Robinson v. McIver, 63 N. C., 645; Hill v. Toms, 87 N. C., 492; Gardner on Wills, p. 418; 1 Underhill on Wills, see. 405; 1 Roper on Legacies, pp. 256, 284. In our opinion, therefore, there was no error in the judgment appealed from, and it is Affirmed.