Frampton v. Blume

Morton, J. The first question which arises is whether the • legacy of $500 given to Adelaide by the fourth article of the will was a general legacy, to be paid by the executor, or a legacy charged upon the estate of Mrs. Greenleaf, to be paid by her. The will contains similar provisions in favor of the other children of the testatrix, a son and daughter, and of their children respectively.- No one can doubt the purpose of the testatrix that the legacy to each grandchild should be paid out of the third part of the residue set apart for its parent, and not out of the general residue of the estate before a division. [155] The plaintiff contends that the intention of the testatrix was, that, after the payment of the debts and the legacies to her two daughters, the residue of the estate should be divided into three parts, for the benefit of her three children respectively and their families; that, out of the part designed for each child, the executor should set apart and pay five hundred dollars to each of his or her children; and that the balance only of such third part was devised to such child. On the other hand, the defendant contends that her intention was to devise the whole of each third part of the residue to her son or daughter, and to charge the estate devised and the devisee with the duty of setting apart and paying five hundred dollars to each of his or her children. Looking at the whole of the will and codicil, the question is not entirely free from doubt, but we are of opinion that the latter is the more natural and reasonable construction. The property of the testatrix consisted almost exclusively of real estate. She by direct and distinct language devises one third of the residue, after debts and legacies are paid, to each child, to be held in fee. So direct a devise ought not to be cut down, unless it is clear from the other parts of the will that it was her intention to give the devisee less than the residue devised. The language of the proviso, that “there shall be set apart from her share a legacy of five hundred dollars for each of her children,” is appropriate to create a charge upon real estate to which the devisee is to take the title. The will makes no provision for the payment of these legacies by the executor, and the fact that they are given in a manner so different from the cash legacies to her daughters, Mrs. ISToble and Mrs. Green-leaf, raises an implication that, according to her understanding, they were to be paid in a different manner. The fact also that there were no means by which the executor could pay these legacies, except by a sale of the real estate which she had in terms devised to her children, throws some light upon her probable intentions. Upon a view of the whole will, we are of opinion that the intention of the testatrix was to devise the whole of the residue to her three children, in equal parts, and to charge each part devised and the devisee with the duty of paying the legacy to [156] each of his or her children, and not to create a liability on the part of the executors to pay such legacies. Henry v. Barrett, 6 Allen, 500. Taft v. Morse, 4 Met. 523. Gardner v. Gardner, 3 Mason, 178. It follows that the plaintiff cannot maintain this action. Judgment affirmed.