34 Wis. 505 | Wis. | 1874
The question to be determined on this appeal is, whether John Calvin McCoy is entitled, under the will, to a share of the surplus in the hands of the executor, or which may hereafter come to his hands.
If he is a legatee, manifestly he is entitled to share in such surplus, because, in the direction contained in the will for the distribution thereof, no legatee is excepted. Our first inquiry will be directed to that point, first premising (what every lawyer knows) that a legatee is one who takes personal property, and a devisee, one who takes real property, under a will.
The will under consideration contains the following clauses : “ I give, devise and bequeath all my estate, real and personal (save what shall be necessary for the payment of my just debts and funeral charges), in the following manner: * * * I give to my brother, John Calvin McCoy, in trust for himself,
It is a stipulated fact in the case, that the estate of the testator was insolvent when his will was admitted to probate, but its solvency was restored by the discovery, after that time, of valuable lead mines on lands belonging thereto, from the rents of which the executor received nearly all of the moneys in his hands. Of course, if the estate was insolvent at the time mentioned, all of the personal estate was necessarily absorbed in the payment of debts and expenses, and the real estate, and the rents, issues and profits thereof, constitute the whole estate for distribution to legatees and devisees. The proceeds of the sale of real estate is realty (Tay. Stats., 1193, § 57); and no good reason is perceived why the rent of mines, from which, as appears by the stipulation, nearly all of the surplus in the hands of the executor was derived, is not also realty. It is really the proceeds of the sale of mineral, which is part and parcel of the realty, and seems to come within the provisions of the statute above cited.
The power of sale contained in the will may be a devise in trust to the executor of such real estate as is not otherwise disposed of by the will; but it seems quite clear that as to the real estate which is otherwise disposed of therein, the executor takes only a general power in trust to sell the same, which leaves the realty, subject only to the execution of the power,
■ But is one-third of the real estate so devised ? This question, and all other questions arising upon the proper construction of a will, must be determined by the intention of the testator, to be gathered from the terms of the will itself, as applied to the subject matter, and the surrounding circumstances. 1 Redfield on Wills, 433. As already stated, the will directs the executor to pay to John Calvin McCoy the amount to which he is entitled under it, and it empowers the executor to sell all of the real estate (except the homestead) to pay such amount and the other legacies bequeathed by the will. These clauses of the will, in substance and legal effect, are directions to the executor to sell the land and pay the bequests, including that to John Calvin, out of the proceeds of such sales.
The law applicable to this state of facts is thus stated by Judge Redfield, in his treatise on Wills : “ The law allows the testator to direct an absolute conversion of' real estate into money for all purposes, or what is called a ‘ conversion out and out.’ To this end it is requisite, not only that the will contain a direction to change land into money, but that it should appear that it was the purpose of the testator that it should, after its conversion, be treated as money for all purposes. In all such eases, the avails of the land go, to all intents, in the same direction as if it had never been land.” Part 2, p. 125.
We can come to no other conclusion than that the testator intended that the proceeds of the sale of his real estate should be treated as money for all purposes, and hence that the provision which he made in his will for his brothers and sisters is not a devise of real estate, but a bequest of money. It follows
There is another view of the case which leads to the same result. The term “legatee” is sometimes used bj unprofessional persons in a much broader sense than that above stated. It is not infrequently used as synonymous with “ devisee,” and such use is sanctioned by lexicographers. Chattels are he queaihed to a legatee, and real estate is devised to a devisee; yet, according to Webster’s Dictionary, the verbs “bequeath” and “devise” are synonymes. We think that it can be gathered from the will itself and the surrounding circumstances, that the testator used the term “ legatee ” in his will in its broader and more popular sense, and that he intended that his brothers and sisters should share in the distribution of the surplus, even though they are technically devisees and not legatees. It does no violence to the language of the will to give it a construction which will carry out the intention of the testator in that behalf.
By the Court. — The judgment or order of the circuit court is affirmed.