Fecht v. Henze

Bbooke, J. (after stating the facts). The only question here involved is the character of the estate which passed to Pauline Ams under the will of Frederick Ams. It is urged by the administrator of her estate, and the circuit judge held, that the will of Frederick Ams created an estate in fee simple, absolute in Pauline Ams, and. that the latter part of the clause, which created that estate, in which the testator attempted to make certain specific bequests to his grandchildren, was void for repugnancy. [57] In reaching this conclusion, the learned circuit judge relied upon the following cases: Jones v. Jones, 25 Mich. 401; Dills v. La Tour, 136 Mich. 243 (98 N. W. 1004); Moran v. Moran, 143 Mich. 322 (106 N. W. 206, 5 L. R. A. [N. S.] 323, 114 Am. St. Rep. 648); and Killefer v. Bassett, 146 Mich. 1 (109 N. W. 21). An examination of these cases will show that in each case the testator, as in the case at bar, used words sufficient in law to create an estate in fee in the first taker, and in each, case the testator then attempted to dispose of such portion of the estate, if any, as might remain at the death of the original devisee and legatee. There is no limitation in the wills considered in any of these cases upon the right of the first taker to dispose of the entire estate during her lifetime, but an attempt is made in each instance to limit an uncertain remainder upon an estate in fee. The case at bar is clearly distinguishable from those relied upon. Here the testator created an estate in fee in his wife, and in the same paragraph charged that estate with the payment of certain specific legacies, upon the happening of a certain future event. There can be no doubt that language, which, standing alone, would create an estate of inheritance, may be so modified by subsequent language as to limit or qualify the estate originally apparently created. Forbes v. Darling, 94 Mich. 621 (54 N. W. 385); In re Owen’s Estate, 138 Mich. 293 (101 N. W. 525). In the case of Robinson v. Finch, 116 Mich. 180 (74 N. W. 472), this court quoted with approval the language used in Smith v. Bell, 6 Pet. (U. S.) 68. It is peculiarly pertinent when applied to the words of the will here considered, and is as follows: “ If the first bequest is to take effect according to the obvious import of the words taken alone, the last is expunged from the will. The operation of the whole clause will be precisely the same as if the last member of the sentence were stricken out; yet both clauses are equally the words of the testator, are equally binding, and equally claim the attention of those who may construe the will. [58] We are no more at liberty to disregard the last member of the sentence than the first. No rule is better settled than that the whole will is to be taken together, and is to be so construed as to give effect, if it be possible, to the whole. Either the last member of the sentence must be totally rejected, or it must influence the construction of the first so as to restrain the natural meaning of its words; either the bequest to the son must be stricken out, or it must limit the bequest to the wife, and confine it to her life. The limitation in remainder shows that in the opinion of the testator, the previous words had given only an estate for life. This was the sense in which he used them.” See, also, Chase v. Ladd, 153 Mass. 126 (26 N. E. 429, 25 Am. St. Rep. 614); Kent v. Morrison, 153 Mass. 137 (26 N. E. 427, 10 L. R. A. 756, 25 Am. St. Rep. 616). In the case of Cousino v. Cousino, 86 Mich. 323 (48 N. W. 1084), where the testator, after providing for the payment of his debts, bequeathed the residue of his estate, real and personal, to his wife, and “after her death, or sooner, if she chooses to, to be divided among my childr'en or their heirs, share and share alike,” this court held that the widow took only a life estate, upon the ground that to construe the will as creating an estate in fee would render the clause quoted meaningless. There is no question that as to $8,000 of the estate left by Frederick Ams, it was his intention to give to his wife, Pauline, only the use thereof during her lifetime. It transpired at his death that his entire estate was of less value than the legacies with which he had charged it. This fact, however, can have no bearing upon the character of the estate created in the widow. It would result simply in a reduction of the legacies pro rata. Construing the will as creating a life estate only as to the $8,000, there is no repugnancy in the clause under consideration, but if, as urged by the appellee, the latter part of the clause is repugnant to the earlier, the latter, being clear, definite, and specific, must control. Barnes v. Marshall, 102 Mich. 248 (60 N. W. 468); Foster v. Stevens, 146 Mich. 131 (109 N. W. 265), and cases there [59] cited; Gilchrist v. Corliss, 155 Mich. 126 (118 N. W. 938, 130 Am. St. Rep. 568); Hamlin v. Express Co., 107 Ill. 443; Schouler on Wills (3d Ed.), § 478. Legacies become a charge upon real estate, either by express direction or by necessary implication. If the language used by the testator indicates that he intended the legacies to be paid, although he knew his personal property to be inadequate for that purpose, they will not abate. Or if the real estate and personalty are blended in one mass, and legacies then bequeathed, the legacies become a charge upon the real estate, if the personalty be insufficient. Gardner on Wills, p. 584; In re Owen’s Estate, supra. We are of opinion that the testator clearly intended to charge his real estate, as well as his personalty, with the payment of the legacies, and that such construction' arises from necessary implication. The testator’s real estate, which at the time of his death was valued at only $5,000, was sold by his widow 17 years later for $6,200. His personal property amounted to only $1,400. It is obvious that, to provide for the payment of $8,000 of legacies, the testator must have intended to charge them upon the real estate, as well as the personal estate, and the blending of his entire estate in one mass in the earlier part of the clause is persuasive evidence of that intent. It is unnecessary to cite authorities to the effect that the primary rule of construction is to discover the intent of the testator, and, if possible, give effect to that intent. As before pointed out, the testator clearly intended that his estate, to the amount of $8,000, should, upon the death of his wife, pass to his own grandchildren rather than to her heirs or devisees. ThB judgment is reversed, and a decree will be entered in this court upon the footings of this opinion, with costs of both courts. Moore, McAlvay, Blair, and Stone, JJ., concurred.