81 Miss. 358 | Miss. | 1902
delivered the opinion, of the court.
The question is this: whether the legacy to the appellant is chargeable on the lands devised to the residuary devisee. The provisions of the will are: (1) I give and devise all my worldly estate of every kind to my wife, Emma Conn Heath, in fee simple absolute, with the exceptions hereinafter named. (2) I give to Mollie Peck Martin $10 to be paid by executrix out of any money left at my death. (3) I give to Delilah Perkins $100 per annum during the term of her natural life, the same to be paid by my executrix out of any money belonging to my estate. (4) I nominate and appoint my wife, Emma Conn Heath my sole executrix, without bond or security, and my sole devisee and beneficiary of my estate, with two exceptions in favor of Mrs. Martin and Delilah Perkins, above specified.” The plain meaning of the testator is this: that his widow should have the whole of his estate- — realty, and personalty, blended into one — after payment of the legacies named. He himself .obliterated all distinction between realty and personalty, blending the whole estate into one common mass, and devises all to his widow, except enough to discharge these legacies. This court say in Knotts v. Bailey, 54 Miss., 239 (28 Am. Rep., 348): “A will-constructed on that plan indicates clearly that the residuary devisee shall take whatever property remains after satisfying previous gifts.” In that case the legacy was a mere general legacy, and yet was held a charge upon the lands. The court looked to the environment, the situation of the testator and the legatee, who had lived many years in the testator’s family, and rendered valuable services. If it is clear, either by express provision or necessary implication, that the legacy is to be paid at all events, and that is what the
There are no words limiting the funds out of which this legacy is to be paid. The testator three times declares his intention that the legacy shall be paid. First, he devises to his widow all, “with the exceptions hereinafter named;” second, he specifically mentions the exceptions; third, he repeats that she is to have all of his property of every kind, with the exception of the legacies given to the two legatees specifically named again. And all this, too, in a case in which he has blended realty and personalty into one common mass. It seems to us plain that the purpose of the testator was that this legacy should be paid at all events, and that it is a proper charge upon the lands involved. This is the doctrine of all the Mississippi cases and of the general American law. See Knotts v. Bailey, 54 Miss., 235; Heatherington v. Lewenberg, 61 Miss., 372; Turner v. Turner, 57 Miss., 775; Cady v. Cady, 67 Miss., 425 (7 South. 216); Peebles v. Acker, 70 Miss., 359 (12 South.
The decree is reversed, the demurrer overruled, and the cause remanded, with leave to answer within thirty days from the filing of the mamdate in the court Tyelow.