Le Rougetel v. Mann

The enumeration of specific things in the same clause of a will which gives “ all the rest and residue ” to the same person, does not necessarily make, the bequest specific .as to the things enumerated. The erection of a monument to the testator’s memory made a charge upon land specifically devised.

Bill in Equity, heard on bill and answer. The bill sets out the will of Moses Mann, late of Greenland, whereof the defendant is executor, in substance as follows:_ “I direct my executor hereinafter named to erect a suitable monument to my memory in. Greenwood cemetery, if the same •shall not have been completed during my life, and to place a suitable inscription thereon, and the care of the same I commit to him during his life, intending to devise, to him my homestead farm and buildings, also four acres of land in Cedar swamp and an acre of marsh land as hereinafter provided.” He then directs the sale of the remainder of his real- estate for the payment of certain specific legacies, among which is one of $400. to the plaintiff. ■ Then follows the clévise of the homestead, &c., “Also all my household furniture, wearing apparel, cattle, horses, carriages, tools, produce [&c.], and all the rest and residue of my estate not hereinbefore bequeathed or devised or mentioned,” &c., to the defendant. The testator died possessed of the before mentioned real estate, and of large personal estate claimed by the defendant to be specifically bequeathed. The defendant was named as executor, and after his appointment sold the' lands, as directed in the will for about $3,200, being more than' sufficient to pay all of said legacies; he has paid the plaintiff one hundred dollars only on account of the legacy to her, and neglects and refuses to pay her more. The plaintiff prays that he be ordered to pay her the remainder of the legacy. The answer alleges that Moses Mann made a codicil to his will, wherein he changed the disposition of his homestead farm, &c., so as to give the defendant only a life estate, with remainder to his children; that substantially all the goods and estate of Moses M.ann was specifically bequeathed and devised excepting the real estate described in the bill, which he was to sell for the payment of the legacies named, and that nothing remained, not specifically given away, out of which to pay the testator’s debts, excepting his real estate; and lie has sold the same, and paid the cost of erecting a monument to the testator, and the testator’s debts, out of the proceeds of the sale; that enough does not remain to pay the plaintiff’s legacy in full, but he has paid to her, ratably with the others, her proportional a share of the proceeds of said sale left after paying the debts and erecting the monument as required by the will.