Lewis's Estate

3 Whart. 162 | Pa. | 1838

The opinion of the Court was delivered by

Rogers, J.

The question depends on the construction of parts of the fourth and eleventh clauses of the will. In the fourth clause the testator declares:. “It is my mind and will, that my dear wife shall, during her natural life, have and enjoy the annual interest or income arising from the rents and sales of one equal third part of all my whole estate, lands, and tenements, whether the same consists of legal or equitable titles, after all necessary expenses, costs, charges, and advances, in recovering the same, and completing the *titles thereof, as well as of the selling and disposing of the same, shall first be deducted out of the whole amount of said rents sales.” in the eleventh clause, he requests, that whatever moneys are due to him, “may be collected with all convenient dispatch, and that the same, with the amount of all his personal estate, goods, chattels, and effects, not herein otherwise disposed of, may, after deducting thereout what may be necessary for the house-use of his wife, his daughter Margaret, and his granddaughter Louisa, until a reasonable time shall be allowed for their convenient accommodation, and also deducting thereout, so much as may be necessary for discharging his just debts, and completing his titles to his Kentucky lands, be divided,’.’ &c. The difficulty is as to the fund out of which the payment of the expenses incurred in completing the title to the Kentucky lands should be paid. The widow contends, that they ought to be paid out of the personal estate; .and the legatees, whilst they admit that the personal estate may be liable in the first instance, insist, that all the testator’s real estate is the primary fund, and ultimately liable for these expenses. We are inclined to adopt the former construction. By the fourth clause the testator charges the whole real estate wherever situated, with all the necessary expenses, which for certain purposes might attend the same; and had it rested here, the widow would have been entitled to the income of the third part of the real estate during life only, after deducting in the first place, the moneys expended in completing the titles to those lands. But in the eleventh clause, for some reason which it is needless to conjecture, his mind would seem to have undergone a change. In that clause in terms which it is impossible to misunderstand, these specific expenses are ordered to be paid out of the personal fund, and the remainder of the personal estate is directed to be divided among certain legatees therein named. In that respect there is an inconsistency between the two clauses, which, if not impossible, it is difficult to reconcile. I feel a reluctance to adopt the views of the legatees, as it would create a partial intestacy; for it is only what may remain of the personal estate, after these deductions, that is bequeathed to the legatees. This certainly could not have been the intention of the testator. It is a rule of construction, that when a will contains two clauses totally inconsistent, and incapable of reconciliation,, the latter shall have the preference. Subsequent words in a will, shall prevail over former inconsistent expressions; for the general rule is, that when there is a repugnancy, the first words in a deed, and the last words in the will shall prevail. And these reasons alone were the governing rules in Sims v. Doughty, (5 Ves. 243); Doe v. Lester, (2 Taunt. 109); and Roe v. Reade, (8 T. R. 122). In Neville v. Broughton, (1 Chan. R. 145,) the Court declared that, a general clause m will ought not to prejudice a particular devise. And in Heal *v. Green, (1 Styles’s Rep. 276,) the same principle is asserted. It is there said that in a will shall not revoke an express devise; the general must not destroy the particular devise. These principles have a direct application and must govern the construction of this will. The testator charges all his real estate with the expenses incurred in relation to the same; but in the latter clause, although not in terms, yet in effect, he excepts the money expended in completing the titles to the Kentucky lands, and directs that these expenses shall be paid out of the personal estate.

But it is said that the personal estate has been more than exhausted in the payment of debts. If this be so, and the accounts exhibited would seem to support the allegation, there is an end of all difficulty; as it is too clear to admit of argument, that the real estate, is chargeable with the deficiency of the personal assets.

The following decree was made in this case—

“ It is ordered and decreed, that the debts of the testator be paid from the personal estate, with the commissions and expenses allowed thereon; and that from the balance, if any, the charges for completing the testator’s title to his Kentucky lands shall be defrayed.”

Cited by Counsel, 6 Wharton, 76 : 2 Jones, 197 : 8 Harris, 244: 5 Casey, 235 ; 3 P. E. Smith, 107.

Cited by the Court, 10 P. F. Smith, 287.