Witman v. Norton

Tilghman C. J. The question in this case is, whether the pecuniary legacies bequeathed by the will of James Dutton are a charge on his real estate? After giving several legacies, he devises as follows. “ As for and concerning “ all the rest, residue, and remainder of my estate, real and “ personal, whatsoever and wheresoever, not herein before “ otherwise disposed of, I do give, devise, and bequeath “ the same and every part and parcel thereof mito the cor- “ poration by the name of the Guardians of the Poor of the “ City of Philadelphia, &c.” I can conceive nothing more plain than the testator’s intention to give only what remained after payment of debts and legacies. The devise of the residue has not the semblance of a specific devise, but shews an intent to give every thing real and personal which remained. Some of the legacies were of so peculiar a nature, (to be appropriated to the purpose of keeping the wall of a grave yard in repair, and erecting tomb-stones over the bodies of testator’s ancestors) that it would be monstrous to think of defeating them by the subsequent devise of the residue. But there needed not that circumstance. The intent would have been sufficiently plain, if there had been no other than the usual pecuniary legacies to friends. Two cases have been decided in this court full as strong as the present, and I think rather stronger. Nidds v. Postlethwaite, 2 Dall. 131; and Hassenclever v. Tucker, afterwards affirmed in’ the High Court of Errors and Ap [397] peals. 2 Binney, 525. My opinion is that the legacies are a charge on the land; and therefore judgment should be entered for the plaintiff. Yeates J. and Brackenribge J. concurred. Judgment for plaintiff.