Gridley v. Andrews

8 Conn. 1 | Conn. | 1830

Bissell, J.

The only question is, whether the legacies given by the will, are chargeable on the real estate, devised to Josiah B. Andrews.

It has been contended, that it was obviously the intention of the testator, that these legacies should be paid; and that the intention ought to govern. It is undoubtedly true, in giving a construction to a last will and testament, the intent of the testator is to prevail. And it is equally true, that in ascertaining this intent, certain established principles are to be observed. Was it the intent of the testator, that the legacies in question were to be charged on his real estate?

The facts found in the case, go very far to show that such could not have been his intention. At the time of making his will, he had personal property more than sufficient to pay all debts and legacies. How, then, could he have intended to subject his real estate to their payment?

But admitting, as has been contended, that the facts set forth in the answer, are not to be taken into consideration; and that we are to look only upon the will, in giving a construction to it; there is no rule better established, none which rests on higher authority, than that pecuniary legacies are never to be charged on real estate, unless such an intention be clearly expressed by the testator. Is there a clear expression of such an intention, in the case now before us? I think not. The testator does not even direct the legacies to be paid; as was done in Knightly v. Knightly, 2 Ves. 328. and in Swift v. Edson, 5 Conn. Rep. 531. There is no clause in the will, from which the intent to charge the legacies on the real estate, can be even remotely inferred, excepting that in which the testator devises the “rest and residue of his estate— and from this clause it has been contended, that such intent is irresistibly to be inferred. The consequence of such a construction would be, that in every case where pecuniary legacies are given by a will cantaining a residuary clause, such legacies are of course chargeable on the lands devised. Such a construction, I hardly need say, would directly contravene the whole course of decisions on this subject. Keeling v. Brown, 5 Ves. jun. 359. Lupton v. Lupton, 2 Johns. Chan. Rep. 614. Powell on Devises, 122. 141. Toller’s Executors, 7. 8.

It is, however, said, that these authorities are not binding here: and although the rule be, as contended for, in Great Britain, where a powerful landed aristocracy exists, and where every encroachment on the inheritance is regarded with an unceasing and watchful jealousy: yet here there is no reason for the application of a technical rule, by which the intention of the testator is often defeated. In reply, it may be said, that a principle of the common law, so long established, and so uniformly acquiesced in, ought not to be, lightly, departed from; as every innovation of such a character tends to produce uncertainty, and to disturb the foundation of titles. Besides, this question has been directly decided, by this Court, in the case of Swift v. Edson, already cited. There, the testatrix gave pecuniary legacies, to a large amount. She expressly directed, that these legacies should he paid. There was a devise over, of the residue and remainder of her estate. There, at the time of making her will, the testatrix was possessed of sufficient persona] estate to pay all debts and legacies. The personal was afterwards, and during her life, converted into real estate, by the foreclosure of several outstanding mortgages. There was a deficiency of personal estate for the payment of legacies. There the prayer was. that the real estate, which had been obtained by such foreclosures, might be applied to the payment of the legacies. As to that relief, the bill was dismissed, arid the Chief Justice, in pronouncing the opinion of the Court, adverts to the well settled distinction between a charge upon the realty, whether it be for the payment of debts or legacies. As to the latter, he says: “There must be a clear, manifest intention that the heir or devisee shall take subject to the legacies.”—In my opinion, there is no such clear, manifest intention in the case before us, and no error in the judgment of the superior court.

The other Judges were of the same opinion, except Williams, J., who gave no opinion, having been of counsel in the cause.

Judgment affirmed.