Lacey v. Collins

Ladd, J.

The sole question for determination is whether the legacy to Ellen Collins is payable out of the real estate of deceased. The personal property left by him was inadequate to meet the indebtedness of the estate and pay the funeral expenses. The will speaks as of the date of the testator’s death, and the codicil is to be construed as part of it. Looking thereto, the intention of the testator appears to have been: (1) That his debts, including funeral ex *585 penses, be paid; (2) that tombstones be erected at tbe graves of himself and wife at a cost not exceeding $200; (3) that $1,000 he paid by his executor to his sister, Ellen Collins; and (4) that “ all the remainder of my property of every kind, both real and personal,” pass to his adopted daughter, Margaret M. Collins. The will recites that “ she shall be my sole legatee ”; but this was modified by the bequest in the codicil to his sister. It will be observed that the disposition of property is not made in the will in the order above indicated, but as the debts, including funeral expenses, the erection of the monuments and the legacy to the sister are to be paid from the estate, and that left to appellant is designated as “ all the remainder of my property of every kind, both real and personal,” the intention that the adopted daughter shall take the residuary estate is manifest. See Kightley v. Kightley, 2 Ves. Jr. 328. No other inference is reasonably to be drawn therefrom. This being so, we have to say whether it was the intention of the testator to charge his entire estate, regardless of its character, with the payment of the legacy to Ellen Collins. The will contains no express provision to this effect, and, unless such intention is to he implied therefrom, the rule must prevail that,, even though the personal estate is insufficient, it is not only the primary, hut the only fund to which resort may be had for this purpose. Morey v. Morey, 113 Iowa, 152 ; Newsom v. Thornton, 82 Ala. 402 ( 8 South. 261 , 60 Am. Rep. 743 ); Montgomery v. McElroy, 3 Watts & S. 370 , ( 38 Am. Dec. 771 ); see In re will of Newcomb, 98 Iowa, 175 . But where such intention is clearly deducible from the language of the will, the realty will be charged with the payment of legacies, notwithstanding the omission to expressly so direct. Morey v. Morey, supra; Greville v. Brower, 7 H. L. 703; Wright v. Page, 10 Wheat. (U. S.), 210 ( 6 L. Ed. 303 ); McCampbell v. McCampbell, 5 Litt. (Ky.), 97 ( 15 Am. Dec. 48 ); Knotts v. Bailey, 54 Miss. 235 ( 28 Am. Rep. 348 ); Thurber v. Battey, 105 Mich. 718 ( 63 *586 N. W. 995 ); McQueen v. Lilly, 131 Mo. 9 ( 31 S. W. 1043 ); Evans v. Beaumont, 16 Lea (Tenn.), 713; Arnold v. Dean, 61 Tex. 249 ; Lee v. Lee, 88 Va. 805 ( 14 S. E. 534 ); Van Winkle v. Van Houten, 3 N. J. Eq. 172. And. where the legacies áre pecuniary and general, and there is a gift of the residue of the estate, both real and personal, and this is blended as one mass, the rule prevails that this conclusively manifests an intention to charge the entire residuary estate, both real and personal therewith. Pitkin v. Peet, 87 Iowa, 268 ; Sloan's Appeal, 168 Pa. 422 ( 32 Atl. 42 , 47 Am. St. Rep. 889 ); Brill v. Wright, 112 N. Y. 129 ( 8 Am. St. Rep. 723 , 19 N. E. 628 ); Knotts v. Bailey, supra; Newsom v. Thornton, supra; Lewis v. Darling, 16 How. (U. S.), 1 ( 14 L. Ed. 819 ). See numerous decisions collected in 19 Am. & Eng. Ency. of Law (2d Ed.), 1354 et seq. Lee v. Lee, 88 Va. 805 ( 14 S. E. 534 ). In the last case sometimes cited as holding that.the rule is different where the bequest is by codicil, the latter provides for payment “ out of any money due and belonging to my estate,” and this was construed to point out the fund from which the legacy was to be taken. The basis of the rule is that a mixed fund has been created out of which to pay the legacies. Tidd v. Lister, 3 De G., M. & G. 857; Ellis v. Bartrum, 25 Beav. 110. It is not necessary that the word residue be used; it is'sufficient if words of like import and equivalent in meaning, as in this case, be employed. In re Hawden, (1904) 1 Ch. 693; Hart v. Williams, 77 N. C. 426 .

Guided by these well-established principles, the district court rightly held that the legacy to Ellen Collins was payable out of the realty, and its order directing the sale is approved.— Affirmed.