Dearlove v. Otis

Mr. Justice Waterman delivered the opinion of the court. A specific devise of money will not be charged against a specific devise of real estate, although there be a deficiency of personal assets. Prior to 1838, in England, a testator could only devise the real estate to which he was actually entitled at the time of making his will. From this was deduced the rule that every residuary devise, however general in its terms, is in its nature specific, being in fact the specific disposition of the lands not before given or not before expressed to be given in the will. 1st Jarman on Wills, 645; 5th Am. from 4th Eng. Ed.; Howe v. Earl of Dartmouth, 7th Ves. 147. Our statute on wills confers upon every male person of the age of twenty-one years and every female of the age of eighteen years, of sound mind and memory, power to devise all the estate, right, title and interest in possession, reversion or remainder which he or she hath or at the time of his or her death shall have. Doubt has been expressed whether this rule of the English law was ever adopted in Massachusetts and it would seem that under our statute it can have no existence here. Blaney v. Blaney et al., 1 Cush. (Mass.) 107-116. The general rule is, that where, in a residuary clause, real and personal estate is commingled, the intention of the testator thereby expressed is, that the residuary legatee shall take only that which is left after all other legacies have been satisfied, and that consequently, upon a failure of personal assets to satisfy the personal bequests, it will be presumed the intentions of the devisor was that they should be charged upon the realty given under such residuary clause. Reid v. Corrigan, 143 Ill. 402; Brooks v. Brooks, 65 Ill. App. 326; Lewis v. Darling, 16 Howard, 1; Jarman on Wills, 5th Am. from 4th Eng. Ed. 605. Upon the hearing, evidence was introduced for the purpose of showing what the intention of the testator was as to charging the particular bequest of money under consideration upon the realty bequeathed under the residuary clause. If the language of a will is free from doubt, no testimony, oral or otherwise, is admissible to determine what the testator meant. In other words, evidence is not admissible to enable the court to depart from the unmistakable language of the will. 29th Am. & Eng. Ency: of Law, 339; Brasher v. Marsh, 15 Ohio State, 108; Tebbs v. Duval, 17 Gratt. (D. A.) 345; Still v. Spear, 45 Pa. State, 170. Although in this State a will speaks from the time of the testator’s death, nevertheless, if his intention is, as enunciated in the will, not clear, evidence of the condition of his estate at the time of the making of the will is admissible. While evidence as to declarations by him as to what he intended is not admissible. In the construction of the will, the court-will put itself as far as possible in the position of the testator, by taking into consideration the circumstances surrounding him at the time of the execution of the will. But this rule does not apply when the clearness of the language made use of is such that there is no room for doubt. 29th Am. & Eng. Ency. of Law, 340; Perry v. Hunter, 2 R. I. 80; Adamson v. Ayers, 5 N. J. Equity 353; Smith v. Bell, 6 Peters (U. S.), 68. As is said in Bergman v. Bogda, 46 Ill. App. 351, it is difficult to see how a devise of the rest, residue and the remainder of the estate can be thought to be otherwise than subject to all that has gone before. The judgment of the Circuit Court is affirmed.