Bardwell v. Bardwell

Putnam J. delivered the opinion of the Court. Whether the decree of the judge of probate should be affirmed or not, depends upon the true construction of the will, in regard to the appropriation or disposition of the personal estate ; and we are to look into the various provisions of the will to ascertain the intent of the testator. The question is, whether the one third of the personal estate given to the wife is to be taken before the debts shall have been paid, from the whole personal estate, or whether the debts are to be first deducted. If there were no other disposition by the testator, the whole personal estate would be subject to the payment of the debts. But we think that the testator has made a different appropriation. He gave to his wife one third absolutely, and to his children and others all his personal estate, with certain exceptions and deductions ; viz. from that part was to be deducted what he had given to his wife, and also the amount of his debts. The rest was to be equally divided between them. The words and paying my debts, are indicative of an intention on the part of the testator, that the legatees should take the bequest upon condition that they would apply the amount of the property given to them, in payment of his just debts, so far as it would extend, before they should take any part of it for their own use. [22] Now in point of fact, two thirds of the personal estate are suffic*ent t0 pay ah the debts, without resorting to the one third given to the wife ; so that there will be something to be divided among the children and others, to whom the personal property was given after the payment of the debts. But if that were otherwise, and there would be no residuum after payment of the debts, we think it would make no difference in the decision. The testator intended to give one third of his personal property, without limitation or restriction, to his wife for her own use ; but the bequest of the residue was subjected to deductions and charges, as well of his debts as of the third part before given to his wife.1 Decree affirmed. Footnotes [1] See Briggs v. Hosford, 22 Pick. 288