114 Ind. 169 | Ind. | 1888
The controversy in this case grows out of the will of William Duncan, deceased. Omitting the formal parts, that instrument reads thus:
“ Item 1st. I give and devise to my beloved wife the farm on which we now reside, situate in Washington township, Dearborn county, Indiana, containing about eighty-two acres, during her natural life, and all the stock, household goods, furniture, provisions and other goods and chattels which may be thereon at the time of my decease, during her natural life as aforesaid, she, however, selling so much thereof as may be sufficient to pay my just debts; and at the death of my*170 said wife, the real estate aforesaid I give and devise to my sons John W. Duncan and James Duncan and their heirs; if, however, either of my said two sons should die before the decease of my said wife, leaving no children living at the decease of my said wife, then the share of said property above devised to such deceased son is hereby devised and bequeathed to my son William Duncan and his heirs.
“ Item 2d. I devise and bequeath to my son William Duncan and his heirs four hundred dollars, to be paid five years after the decease of my said wife.
“ Item 3d. I devise and bequeath to my two daughters, now married to Mathias Davis and W. W. Wilson, two hundred dollars each, to be paid seven years after the decease of my said wife.
“ Item 4th. I devise and bequeath to my two daughters, now minors, Catharine Duncan and Temperance Ann Duncan, each six hundred dollars, the oldest daughter to receive her six hundred dollar’s two years after decease of my said wife, and the youngest to receive her six hundred dollars four years after the decease of my said wife.
“ Item 5th. I do hereby nominate and appoint my beloved wife guardian of my minor children until they become of the age of twenty-one years.
“ Item 6th. I do hereby nominate and appoint my beloved wife, Catharine Duncan, and John W. Duncan executors of this, my last will and testament, hereby authorizing and empowering them to compromise, adjust, release and discharge, in such manner as they may deem proper, the debts and claims due me. I do also authorize and empower them, if it shall become necessary in order to pay my debts, to sell by private sale, or in such manner, upon such terms of credit or otherwise as they may think proper, all o-r any part of my real estate, and deeds to purchasers to execute, acknowledge and deliver in fee simple.”
The complaint of the appellee sets forth the will, avers that the widow of the testator elected to take under the will,
The appellee contends that the legacy to Catharine Duncan is a charge upon the real estate of which the testator died seized, and the trial court sustained this view. The question for our decision is, was this holding correct?
It is the cardinal rule in the construction of wills that the intention of the testator must be ascertained and carried into effect. This fundamental rule prevails where the question is whether a legacy constitutes a charge upon lands as well as in other cases. Where it appears from the will, either by express words or by fair implication, that it was the intention of the testator to charge the land he gives to a devisee with the payment of specific legacies, the devisee will take it. subject to that burden.
In determining whether it was the intention of the testator to charge legacies upon land, the words of the will are, of course, to be chiefly regarded, but assistance may be derived from circumstances existing at the time the will was executed. We do not mean that parol evidence may add words to the will or subtract words from it, but we do mean that parol evidence is competent to prove- the situation and condition of the testator and his property. Pocock v. Redinger, 108 Ind. 573.
To illustrate, if a testator should have no personal property whatever, and of that fact have knowledge, parol evidence may be given to prove these facts in a case where legacies are specifically bequeathed. In this case we agree with appellee’s counsel that, to the extent indicated, parol evidence is competent, and should be considered in construing the will.
Where a testator gives legacies and so disposes of all his personal property that it can not be made available for the payment of the legacies, the natural presumption is, that he intended to charge the land with the payment of the legacies,
In the case of McCorn v. McCorn, 100 N. Y. 511, a question of a character similar to that before us was presented, and it was held that the will impliedly charged the legacies upon the land, the 'court saying, among other things, that: “ His personal estate was insufficient even to to pay his funeral expenses, and the two legacies to the widow and son were mere mockeries unless meant to be a charge upon the real estate.” The cases, ancient and modern, sustain this general doctrine. Aubrey v. Middleton, 2 Eq. Cas. Abr. 497; Lypet v. Carter, 1 Vesey Sr. 499; Cross v. Kennington, 9 Beav. 150; Elliott v. Hancock, 2 Vern. 143; Webb v. Webb, Barn. Ch. 86; Corwine v. Corwine, 24 N. J. Eq. 579; Van Winkle v. Van Houten, 2 Green (N. J. Eq.), 172; Scott
Personal estate is primarily the fund out of which legacies are to be paid, and where there is a specific devise of land, and no words creating a chai’ge on it, the legacies must, as a general rule, be paid out of the personal property. Lindsey v. Lindsey, supra.
As the personal estate is made by law the primary fund out of which legacies are to be paid, it must be held, in the absence of countervailing facts, that the testator intended that the personal estate only should be used to pay them. It follows from what we have said that the appellees can not charge the land, unless it appears from the complaint either that the testator had not sufficient personal property at the time the will was executed, or that he so disposed of it by the will as that it could not be made available for the payment of legacies.
The complaint does not aver that the testator did not have personal property sufficient to pay the legacies at the time of his death. It does aver that the widow of William Duncan died leaving no part of the personal property bequeathed to her, and that the testator “ left no personal property whatever other than that which was taken by the widow as allowed to her by the will.” These averments do not assert that, at the time the will was executed, the testator did not have personal property sufficient to pay the legacies; on the
The right to resort to real estate is not a primary one, and the legatee who asserts that right must affirmatively show such facts as call it into existence. He can not invoke a presumption without facts to support it, or words sustaining it, for, without such facts’ or words, the presumption is in favor of the devisee. If the facts are not such as to create the presumption that the testator intended to charge the land the devisee will prevail, unless the language of the will itself creates the charge on the land.
We are of opinion that only a life interest in the personal property was vested in the widow. She is not clothed with an absolute power of disposition, but has only authority to dispose of the property to pay debts. The words of the will creating her estate unequivocally limit her interest to one for life, and there are no words inconsistent with them. The estate expressly created is not enlarged by any superadded words; on the contrary, the power to dispose of the personal property is limited to a single purpose, that of paying debts. Goudie v. Johnston, 109 Ind. 427.
Another consideration of importance is, that the terms used in disposing of the personal property are substantially the same as those employed in disposing of the real estate, and they are associated together in one clause, thus evincing an intention to give the wife a life interest in both kinds of property. It would violate all rules of construction to hold that the testator created one estate in one kind of property and another estate in the other kind, where, as here, substantially the same words are employed in disposing of both kinds. This conclusion is strengthened by the fact that the legacies are made payable after thq wife’s death, thus indicating that a life-estate in all the property was devised to her.
We can not avoid the conclusion, after a very careful study of the ease, that the complaint as it now stands is insufficient.
Judgment reversed.