Stark v. Byers

Pee Cueiam, Two questions are raised by the amended assignments of error. As to the first, the auditor reported : “ As to the claim for $1,500 for the erection of monuments at the graves of C. H. Stark and his wife. “ The claim is made that it was the intention of the testator, O. H. Stark, to give to W. S. Byers only what was left after paying all legacies and performing all duties in the will. The testator is very careful to designate the legacies that are charged on the land. He uses the following language: “ I give, devise and bequeath unto my beloved wife, Ann Lavina Stark, all my estate, real, personal and mixed, of what nature or kind soever and wheresoever the same may be at the time of my decease for and during the term of her natural life, and at her death I give, devise and bequeath all of my estate as aforesaid, unto my friend William S. Byers, Attorney at Law, of Greens-burg, Pa., to him, his heirs and assigns forever, subject, however, to and charged with the payment of the following legacies and bequests: ” “ There can be no doubt that the legacies which follow are charges on the land. But the direction as to the above claim of $1,500 is not in this list. Before making the explicit charges on the land, the testator uses the following language as to this claim: “ I direct that my executor hereinafter named shall erect or cause to be erected at my grave and at that of my wife when she shall depart this life, suitable monuments, the costs of which shall not exceed the sum of $1,500. He, my said executor shall use his discretion and best judgment in regard to [105] the erection of the monuments for myself and wife .... he having an intimate knowledge of my wishes and desires in regard thereto. I further direct that in the settlement of his accounts he shall have credit for all moneys expended by him in the carrying out of my wishes and desires.” “ There is no specific amount mentioned. The will seems to fix only an amount which is to be determined by the executor, not to exceed SI,500. How much could be impounded for this purpose ? One hundred dollars ? Five hundred dollars ? One thousand dollars ? Or fifteen hundred dollars ? “ In the brief submitted by the learned counsel for this claim the law does not exactly fit the facts of the present case before us. The words used after certain directions are, “ Rest, Residue and Remainder,” clearly showing that what was left was given under the will. In this case the testator, C. H. Stark, gives to his wife all his estate, real, personal and mixed, and at her death to W. S. Byers all his estate as aforesaid, charged with certain specific legacies. “ The auditor is of the opinion that this claim is not a charge on the land and should not be allowed, out of the fund here for distribution.” On the other question the auditor quoted the opinion of the learned judge below filed at an earlier stage of the case. On that opinion and the portion of the auditor’s report quoted the decree is affirmed.