Arnold v. Dean

West, Associate Justice.— This ease has been presented for our consideration in the most careful and satisfactory manner, both by briefs and oral arguments of the respective parties. ' We have ourselves also examined, as thoroughly as the demands upon our time would permit, the different points raised in the case. Hot only have all the authorities cited by both' parties been considered, but many others bearing more or less directly on the questions in hand have also been resorted to, and studied in this connection. It would serve no good purpose, in a case of this character, to give at length all the reasons that have induced us to come to the conclusion we have reaphed. We shall, therefore, content ourselves with stating in general terms the result of our investigations. There can be no doubt but that the general rule is, that the personal estate of the testator is the primary" fund to be resorted to for the payment of legacies, as also of debts. All- the English authorities, especially those of an early date, and a great many very highly respectable American authorities can no doubt be found, that hold that this course of resorting to the personal estate as the primary fund for the payment of legacies is not to be changed by the courts, or departed from, except in cases where the evidence of the intention of the testator is clear. Doubtful words in a will are not to have the effect of exempting the testator's personal property from the payment of legacies, or of charging them on the real estate. More especially is this general rule enforced by courts in cases where the real estate' sought to be subjected to the satisfaction of the legacies in question has been already specially, and in the most unmistakable manner, made the subject of a special legacy, and the mode and tone of its final disposition expressly provided for in the will. In cases of this character, Mr. Bed field, in his work on Wills, has laid down the true rule very clearly, when he remarks in vol. 2, p. 208, as follows: “ The cases are very numerous where the terms used have been held sufficient to charge the payment of legacies upon real estate; but it would be scarcely useful to occupy time and space in repeating them here, as they would not govern other cases not entirely similar.” [254] Applying this rule to the case in hand, it appears With reasonable certainty from the judgment of the court, and the terms of the will, and from the report and account of the executors found- in the record, that when the will was written, and when the testator died, there were sufficient assets on hand to have paid the preferred legacies out of the general funds of the estate, and even to have left a surplus. Causes-transpiring after his death, and some of which he had supposed he had guarded against in his will, occasioned the deficiency in the general assets, if, in fact, they are insufficient to pay the legacies. -. ' ' ■ The record shows a-considerable amount paid as attorneys’ fees to different parties.- ■ It also shows a considerable amount paid out to compromise and end a law suit. Also, there appears to have been heavy and unusual and unanticipated expenses and costs attending the administration. It is clear from the will that the three children of O. W. Arnold, Mrs. Swann, and Aylett Dean, were intended to be favored legatees; it is also plain, for reasons hinted at in' the will, that when the will was written they occupied a “ place nearer the heart of the testator ” (to use Chief Justice Gibson’s expression, in'-a somewhat similar case) than did the other legatees. But it seems equally clear to us, when we consider that at that time, and when he died, the assets were sufficient to pay all debts and discharge these special legacies without a sale of the real estate now sought to be sold, that it'was not the intention of the testator to subject the lands in question to sale for this purpose, especially when' he had provided that the land in Haskell county should not be sold until the year 1888, and had specially devised the Milford plantation. In fact,' to give the will the construction contended fop by the appellants, would, we- think, rather tend tó defeat than to carry out the intention of the testator. The case would be before us in- a more satisfactory manner if there had been a statement of the facts proved on the trial in the district court, or if the judge had been requested to give, and had given, in a formal manner, his conclusions of fact and law. As the matter is now presented to-us, after a careful examination of the record, and after giving due consideration to all the points presented so fully and faithfully by counsel, we are of the opinion that there is no error in the judgment. It is therefore affirmed. Affirmed. [Opinion delivered March 4, 1884.]