Addeman v. Rice

Matteson, C. J. The purpose of the first clause of the first codicil was to reduce the share of the *32 estate given to his wife by the testator in his will. lie recites in it the gift in the fifth clause of the will of an undivided half of his residuary estate to her in the will in lieu of dower,; that since the making of the will he had conveyed to her his homestead estate ; his intention not to give to her too large a share of his estate, and thereupon declares his will to be that she shall have an undivided third of his residuary estate; then, as if thinking the reduction to one third too large a reduction, adds that it is to be “free and clear from the payment of all debts, legacies, expenses of administration and other charges.” This language is explicit. The intention is too plain to he overborne by any argument of a contrary intention derived from the use of the word ‘£ residuary.” Of course, a residue is necessarily what is left after something has been taken out, and as used in a will is ordinarily what remains after the payment of debts, funeral charges, expenses of administration and legacies; hut it is competent for the testator to exonerate a particular portion of his estate from the payment of these or any of them, and to charge them on other portions of his estate, so that the question in such cases resolves itself into one of the testator’s intention. In the present case the intention of the testator is sufficiently plain, so that, if it were necessary, we should feel warranted in rejecting the word “residuary” as having been inaptly or inadvertently used; perhaps because the estate given to Mrs. Eice in the will had been described as an undivided half of the rest and residue of the testator’s estate ; for not only' is the interest which she is to take by the codicil to be free and clear from all debts, legacies, funeral expenses, expenses of administration and other charges, but the gift of the remaining two thirds of the testator’s estate to his son and daughter is made expressly “ after payment of debts, legacies, funeral expenses and expenses of administration therefrom.” , But it is not necessary to. reject the word “‘residuary. Effect may he given to it by holding that the specific legaciesgiven in the will are to be first taken out of the estate and that the residue thus created is the residuary estate of which *33 an undivided third is given to his widow. The testator in exonerating the share given to her from the burdens specified had in contemplation merely what would have to be paid out for these purposes, and, therefore,- meant to include in the word legacies pecuniary legacies only, and not specific legacies, and accordingly described the estate which remained outside of the specific legacies as residuary estate. Stephen O. Edwards & Walter F. Angelí, for complainants. Joseph C. Ely & Herbert Almy, for Rebecca R. Rice and others. John F. Lonsdale & Joseph S. 0. Cobb, for George A. Rice. Stephen A. CooJce & Louis L. Angelí, for William S. Hayward and wife. We are of the opinion, therefore, and instruct the complainants : 1. That Mrs. Rice is entitled to one undivided third of the testator’s entire personal estate, after delivery of the specific legacies. 2. That the testator’s debts,- funeral expenses, expenses of administration and pecuniary legacies are to.be paid out of the residuum after delivery of the specific legacies and the payment to Mrs. Rice of her undivided third of the estate as stated. 3. That the respondents George A. Rice and Lucy M. Hayward are entitled in equal shares to what shall remain after the delivery and payments mentioned in the two preceding clauses have been made. 4. That the complainants shall apply and distribute the fund in their hands to the payments and in the order specified, except that if the sums which would otherwise be paid to George A. Rice and Lucy M. Hayward shall be insufficient for the payment of the testator’s debts, funeral expenses and expenses of administration, these sums shall be first applied to such payment and sufficient money shall be taken from the share of Mrs. Rice to make up any deficiency.