Johnson v. Poulson

The opinion of the court was delivered by Dodd, J. The question in this case is, whether three legacies of $2,000 each, given by the testator to his daughters, are chargeable on his farm. The argument that they are, was drawn not from any express words in the will, but exclusively from what was claimed to be the legal effect of the residuary clause. It was contended that the legacies are payable out of the laud, by virtue of the rule of construction adopted by this court in Corwine v. Corwine, 9 C. E. Gr. 579, namely, that where legacies are given generally and the residue of the real and personal estate is afterwards given in one mass, the legacies are a charge on the residuary real as well as personal estate. In Corwine v. Corwine, the will, after certain pecuniary legacies and specific bequests, gave to the testator’s son the entire residue of the estate, both personal and real. The intention of the testator to charge the legacies on his land was deduced in that case solely from the words, “ residue of real and personal estate.” There was nothing else in the will to indicate, expressly or by implication, an intention either in favor of or against such a charge. The long-established rule, repeatedly declared by the courts of this state, makes personal estate the primary fund out of which legacies are payable. The real estate is not charged with the payment of legacies unless the testator intended it should be, and that intention must be either expressly declared or fairly and satisfactorily inferred from the language and dispositions of the will. This rule was held, in Corwine v. Corwine, to be met and its requirements satisfied, by giving to the word “ residue” its natural and'proper force and effect. It signifies what is left of a- number or a quantity after something has been abstracted. The residue of a farm is what [394] remains of it after something has been taken away. The residue of a blended mass of real and personal estate is what remains after the mass has been diminished by something subtracted. Hence, when pecuniary legacies are first given, and, afterwards, the residue of the testator’s estate, real as well as personal, his intention to have the legacies payable out of the real, if the personal estate be insufficient, appears, in the absence of any inconsistent words or provisions in the will, by necessary implication, from the woi’ds “ residue ” or “ remainder,” when applied to the two kinds of property combined. It is to be observed, from the nature and grounds of this rule of construction, that it cannot prevail except where the inference arising from the words above used, taken in their natural and reasonable sense, is not restrained or avoided by other words or provisions in the will, to which due effect must be given in collecting the intent from the instrument as a whole. The complainants in the present case rely upon the language of the residuary clause as being in substance and effect identical with that in Corwine v. Corwine, but while there is a similarity between some of their important phrases, the residuary clause in this case, and that part of the will which precedes the residuary clause, do not, as in Corwine v. Corwine, show the same absence of words and provisions bearing against the implication or inference on which the rule adopted in that case was founded. The rule itself being a judicial interpretation of words used wdth reference to the other conditions of the will, is subservient, as rules of construction in all cases are, to the cardinal and predominant one which seeks the purpose of the testator from all parts and provisions of the instrument considered together. The testator, William Johnson, in the second item of his will, and before giving’the legacies in question, makes provision for the use by his widow of his residence and farm, apparently contemplating her continued residence and ownership there, in connection with his sons, to whom the farm [395] was subsequently-devised. There is an indication in the arrangement thus primarily made, not favorable to the view that the farm was.liable to be sold for the legacies after-wards given. Following the bequests of the three legacies now sought to be enforced, are the words of the residuary clause: •“ I also give, devise and bequeath to my sons George and Gardner, all the rest and residue of my property, including the farm on which. I now live, and all the farming implements, machinery, hay, grass, grain &c., cut or to be cut, that shall be on my said farm at the time of my death; subject, nevertheless, to certain payments to be made by them hereinafter mentioned.” It is observable that the farm which is therein devised, and the same now sought to be charged, is expressly subjected to the payment of certain legacies thereinafter bequeathed. This’ circumstance, also, is unfavorable to the view that it was meant to be subject to the legacies preceding. The presumption is, that having expressed tbe intent in the one case and not in the other, the intent in the other was not entertained. JExpressio unius est exclusio cdterius. The situation of the testator’s property at the making of the will, and the relative amounts of his real and personal estate, do not favor the opinion that he meant to charge both classes of bequests on the farm. It is established in this state that parol evidence is admissible to show the nature; situation and amount of the testator’s property, in order to arrive at his intention to charge legacies on the realty; Leigh v. Savidge, 1 McCart. 124. Such, however, is the presumption against a charge, unless distinctly imposed, that though the insufficiency of the personal .estate to pay legacies, when so made to appear, creates a strong impression in favor of an intention to charge them, yet, standing alone, it is not enough as against heirs to effect such a charge. Proofs were taken in this case. It is unnecessary to advert to them further than to say, that they do not establish satisfactorily the insufficiency of the personal estate. The devise of the farm free from- the legacies in. dispute, does396 not seem to have been unsuited to the distribution of his property, as directed in his will, among his daughters and sons. Another reason relied on by the appellants against the lien of the legacies on the farm was, that by the residuary clause it is specifically devised. The testator’s language is, “I devise and’bequeath to my sons all the rest and residue of my property, including the farm, &c.” It was contended that, being specially named, the farm was separated from the residue, distinct from and no part of it. The doctrine that lands and particular articles or kinds of personal property specially named in a residuary clause are not part of the residue, is supported by the authorities cited: Shreve v. Shreve, 2 Stock. 390; Clark v. Butler, 1 Mer. 304; Bethune v. Kennedy, 1 Myl. & Cr. 114. In Conron v. Conron, 7 H. L. Cas. 168, the effect of a specific devise in exempting the devised land from the payment of legacies, was elaborately discussed, and the principle strongly affirmed by the court, that where a specific devise is once given in the will, the presumption is that the intention of the testator was to give it in its integrity and without derogation. It was laid down as a rule of construction that the pecuniary legatee cannot resort to the property specifically disposed of unless expressly directed in the will. The force of the rule applied in that ease was such that, though the testator had said, in the body of the will, “I charge and encumber all my real and chattel estates,” and in a codicil, “I charge and encumber all my estates of every description,” yet 'these words of general charge were read by the court, in construing the will, as a charge only on what he had not otherwise disposed of. It seems clear that this principle would, of itself, and without the aid of the circumstances heretofore mentioned, exonerate the farm, if the words used by the testator could be interpreted as clearly constituting a specific devise. If he had said “all the rest and residue of my property, and also my farm,” or, “ together with my farm,” the specific [397] devise would have been unequivocal and complete. This was so ruled in Bethune v. Kennedy, 1 Myl. & Cr. 114. In the present case the words are, “including the farm Ac.” These words do not exclude with precision and certainty the idea that the rest and residue given by this clause might include the residue of the farm, and not the whole farm without derogation. The verbal construction may be open to doubt, but, looking at the specific enumeration made in the clause, and seeing that it could possess no significance, but must be treated as useless, if not taken as additional to the residue, I think the latter interpretation should be adopted. For these reasons I am constrained to dissent from the opinion below, and think that the decree, so far as this point is adjudged, should be reversed. Decree unanimously reversed.