Fearing v. Swift

Chapman, J. The petitioner, who is administratrix with the will annexed of Katy T. Swift, asks leave to sell certain real estate for the payment of debts and funeral expenses, on the ground that these debts and expenses were, by the terms of the will, made chargeable upon the real estate. The appellant resists the partition on the ground that they are not made thus chargeable. The decision of the question between the parties depends upon the language of the will. And the question what language shall be sufficient to charge pecuniary legacies upon real estate, must depend upon intent. 2 Redfield on Wills, 821. It must be the same as to debts and funeral expenses. The first clause of the will is as follows: “ It is my will that all my just debts and funeral charges be paid out of my real estate given to my sister and William Swift during his life.” No language could make the intent plainer, that the debts and funeral charges were to be charged upon this estate. But we must ascertain from other parts of the will what this real estate is. The second clause is, “ I give and bequeath to my sister Joanna G. Fearing, and to William Swift, the homestead and buildings thereon, to have and to hold equally the lower side of the road.” Here, then, is a devise of real estate to the two persons mentioned in the first clause, and it is without words of inheritance. The word “ homestead ” is evidently used to designate the boundaries of the land, and not the quality of the estate given. It may be explained by the first clause; and, thus explained, it is an estate for life. It is not a case therefore in which we have to resort to the rule of construction presented by Gen. Sts. c. 92, § 5. But, by the fourth clause, the homestead is charged with four pecuniary legacies of twenty dollars each, and it is contended that such a charge creates a fee, and therefore that this cannot be the property referred to in the first clause. In the cases relied upon to support this view, the fact that the land was charged with a legacy was held to be merely an [416] indication of the intent of the testator to give a fee, and it was not laid down as an inflexible rule of construction. Frogmorton v. Holyday, 3 Burr. 1618. Doe v. Richards, 3 T. R. 356. In both cases the court sought to ascertain the intent of the testator ; and in many cases it is in fact true that such a charge is a reasonably clear indication that he intended to give a fee. But he has a right to make these charges upon a life estate if he will; and when his language, fairly interpreted, indicates such an intention, it would be absurd for courts to set up a rule of construction that would defeat his intent. No case has been cited where such a rule has been adopted. The fourth clause contains further words which throw light upon the intent of the testator. It gives several legacies, with an express direction that they shall be paid out of the personal estate. This, taken in connection with former clauses, indicates that the testator gave careful attention to the question what fund should be chargeable with legacies, debts and funeral expenses. We cannot think there is any reasonable doubt as to- what the testator intended by these provisions. Decree affirmed.