Hulton's Appeal

Mr. Justice Gordon delivered the opinion of the court, November 5th 1883. The will of Jonathan Hulton is not as clear and unambiguous as it might have been, nevertheless by taking it and the codicil together, we think it ia possible to discover with a reasonable degree of certainty, his testamentary intention. Martha, his unmarried daughter, seems to have been the principal object of his care and bounty. To her he gives first, a lot of ground one hundred feet square, and in consideration thereof requires her to pay one hundred dollars each to the five children of James Hulton. Next, he devises to her his dwelling-house and every thing in it-, except such articles as are after [363] Avards bequeathed to others of his children. Then comes the following provision: “ I give to my daughter Martha all the remainder of my ground except Avhat is hereafter mentioned; that is a lot bounded and described as follows ; beginning at the corner of Railroad avenue and ' I ’ street; thence along Railroad avenue one hundred feet; thence along Martha’s line one hundred and fifty feet; thence along Martha’s line one hundred .feet to ‘I’ street; thence down 'I’ street one hundred and fifty feet to the place of beginning.” An inspection of the above quotation will show that a general residuary devise of the testator’s realty is not here intended, but rather a specific devise of what should remain of a definite lot of ground, after that particularly described was separated from it. Then again, we have the following item, the one which gives rise to the principal point of contention. “ To my son Francis 1 give my clock, bureau, and the painting of a horse ; to my daughter Alice I give my piano ; the rest of my personal property, both in and out of the house, I give to my daughter Martha. My daughter Martha must pay all my debts and funeral expenses, but my funeral expenses must not cost more than one hundred dollars, on any account whatever.” FTeither can we regard this as technically a residuary bequest of personalty, for the words, ££ the rest of my personal property, both in and out of the house/’ can be taken to refer to nothing but such chattels as might be in or about his dwelling. . This bequest, therefore, is quite as specific as if he had said, “ my household chattels, reserving my clock, bureau and piano, I give to my daughter Martha.” We have nothing then, in the way of a residuary devise or bequest on which to raise a doubt, or beget hesitancy, as to the testator’s intention, as expressed in the codicil, concerning the ultimate disposition of his debts and funeral expenses. But whilst that part of the will just quoted, clearly charges Martha with the payment of those debts and expenses, when we come to the codicil we find, as to this charge, as well as to several other particulars contained in the original testament, an expression of intention differing radically from that first entertained by the testator. He relieves Martha from the payment of the five hundred dollars bequeathed to the children of James Hulton ; he substitutes her to the place of Mrs. Bright in the bequest of the money coming from the sale to Mrs. Dr. Reynolds; he provides specially for the payment of his debts and funeral expenses, and, as we think, thus relieves Martha from that charge also. As this part of the codicil is the main subject of controversy in this appeal, we give it in full: “ Having bought back the lot I sold to my grandson Jonathan fronting on Railroad [364] street, it is my will that so much of it as is contained in the written description, to wit: beginning in the corner of a twenty feet alley and Railroad street; thence along Railroad street one hundred feet; thence through the same lot one hundred and seventy feet, or until it strikes the line between De Camp and Dr. Reynolds ; thence along said line one hundred feet; thence down the- twenty feet alley to the place of beginning one hundred and eighty-four feet. It is my will that my daughter Martha, my sole executrix, sell the above lot, and I hereby authorize and empower her to do so and make title therefor, and for such price as she sees fit and proper. The money that she may receive for said lot shall first go to pay all my debts and funeral expenses, and what money is left from it shall go to all my heirs except my daughter, Elizabeth Bright. She is to have no share of my estate. I will the share that would go to her shall go exclusively to my daughter Martha. The residue of the 'above mentioned lot shall go to James’ heirs.” Row if there is one thing clear in this codicil it is, that the testator intended to charge upon the land thus described, the whole of his debts and funeral expenses, and that he thus intended to relieve the appellant of the charge previously imposed upon her. That this is a true solution of the testator’s intention is not denied by the appellees, but it is said, that, as the matter turned out, this property did not sell for enough to pay the debts, and therefore we must resoi't to the original charge in the will for the balance. But this cannot be done arbitrarily. It does not follow that because she was once charged, the subsequent devise is to operate merely.to her relief pro tanto. The question is, what was the testator’s intention; what were his thoughts when he penned this codicil? What he thought is patent. He had no doubt but that a fund sufficient, and more than sufficient, to pay the debts and expenses could be raised from the sale of the land devoted to that purpose. But not more certain is it that he thought .and believed he had provided for these necessary charges upon his estate, than that he intended to relieve Martha of them, and that not in part, but in whole; altogether, the question is not what his intention would have been, had lie either known or thought differently, but what was his intention in view of his knowledge and understanding when he made his codicil. And non constat had he known just how the matter would have turned out, that he would not have charged the deficit upon his general estate rather than upon Martha. Here, however, we get into the region of doubt and uncertainty, but when we assume the position and ideas of Jonathan Hulton when he executed the instrument before us, and disre [365] gard, as we are bound to do, the facts and circumstances occurring after his death, and which he evidently did not anticipate, his intention to relieve his daughter of that which he had formerly imposed upon her, becomes so clear that hesitation concerning it is impossible. The decree of the court below is now reversed at the costs of the appellees, and it is ordered that the appellant’s account be restored and confirmed.