18 W. Va. 263 | W. Va. | 1881
announced the opinion of the court.
Thomas .Cather died 1865 leaving a will, which is as follows to wit:
“I, Thomas Cather, of the county of Taylor, and State of West Virginia, do therefore make, ordain, publish and declare this to be my last will and testament — that is to say:
First. After all my lawful debts are paid, the remainder or residue of my estate, real and personal, I give, bequeath and dispose of as follows, to wit: To my wife, Barbara, her interest and support upon the home-farm. To my daughter, Emily Read, two thousand dollars, to be paid in four equal annual payments, the first payment fifteen mouths after my decease ; and to my grandson, Guy B. C. Bead, one thousand dollars, to be paid in two equal annual payments, the first within one year after Emily’s last payment is'due. To my son, Flavius Josephus, all the land I own on the north side of a line (the B. Lowe land of twenty two acres included) running from a white oak corner to lands of Moses Hustead, standing near to and south of the.site of an old still-house, known as Francis Coplin’s, running thence south eighty seven (87) east sixty (60) poles to a white oak ; thence north fifty (50) east thirty six
Emily Read and her husband, and Guy R. C. Read, brought suit in the circuit court of Taylor county, against F. A. Cather, as executor and in his own right, and A. J. McDonald and James Burnsides jr., who were purchasers from F. A. Cather of the land devised to him in said will, alleging an insufficiency of assets to pay the debts and legacies, and seeking to charge the real estate in the hands of the purchasers, McDonald and Burnsides, with the payment of the legacies. The court below dismissed complainants’ bill; and they have appealed to this Court.
The only question, which arises upon the record, is, whether the lands devised to F. A. Cather in said will are charged with the payment of the legacies to Emily Read and Guy R. C. Read.
Whether a legacy is a charge upon the real estate devised in a will is a question of intention upon the part of the testator. According to the English rule that intention is to be derived exclusively from the provisions of the will; and parol evidence is inadmissible to aid in ascertaining that intention. 1 Rop. Leg. 451 (576, 4 ed.); Parker v. Pearnley, 2 Sim. and Stu. 592. In Virginia the rule is not so strict; and parol evidence is admissible. Downman v. Rust, 6 Rand. 587; Clark v. Buck, 1 Leigh 490; Trent v. Trent’s ex’r, Gilm. 174. Chancellor Kent thus states the law: that the real estate will not be charged with the payment of legacies, unless the intention of the testator to that effect is expressly declared, or clearly to be inferred from the language and disposition of the will; and that it was not sufficient, that debts or legacies are directed to be paid, that alone does not create the charge; but they must be directed to be first or previously paid, or the devise declared to be made after they are paid. Lupton v. Lupton. 2 Johns. Chy. 614.
The counsel for appellants have cited only three eases in support of the position, that by the will of Thomas Cather the land is charged by implication with the payment of the legacies, viz: Cole v. Turner, 4 Russ. 376; Morehouse v. Scaife, 2 Myl. & Cr. 695, and Downman v. Rust, 6 Rand. 587. In the first of those cases after a gift of legacies the. testator devised “all the rest residue and remainder of his freehold, copy-hold and lease-hold estates;” in the second the testator devised “all the rest and residue of his estate, both real and personal;” and in the third the testator devised “all the rest of her estate real and personal in fee simple.”
In the present case it is not pretended, that there are any words indicative of an intention on the part of Thomas Cather to charge the real estate by implication except the words: “To my son Fabricius Augustus all the residue of my lands in Taylor and Upshur counties.” This is a specific devise of those lands to Fabricius Augustus. The testator had just before made a specific devise of lands to another son, which he particularly identifies by detailing how the line is to be run, and then gives the residue of his land in Taylor and Upshur counties to this devisee. It was not a devise of the residue of his estate real and personal, but only the residue of his land in those two counties, after a portion of it had been devised to
Thomas Gather in his will does not direct, who is to pay the legacies, nor out of what fund they are to be paid. In Harris v. Fly, 7 Paige Chy. 425, the Chancellor says: “The personal éstate is the primary fund for the payment of debts and legacies. If therefore a testator gives a legacy without specifying, who shall pay it, or out of what fund it shall be paid, the legal presumption is, that he intended it should be paid out of his personal estate only ; and if that is not sufficient, the legacy fails.” But in this case there is a strong circumstance to show, that the testator did not intend to charge his real estate. He first gives the legacies, then specifically devises the real estate and then says: “My personal property to be equally divided between my three children Emily, Fla-vius J. and Fabricius Augustus or their heirs &c.” From this provision it is apparent, that the testator contemplated, that after the payment of debts and legacies there would be a residue of personal property, which he gives to his three children, in which event it would have been unnecessary to charge the
In the will of Thomas Cather there were no such introductory expressions, as would raise a charge upon the realty by implication; and hence the disposition of the personal estate after providing for legacies makes a much stronger case to show there was no intention upon the part of the testator to charge the real estate.
I see nothing in the will of Thomas Cather to raise a charge by implication upon the real estate for the payment of the legacies; and I am therefore of opinion to affirm the decree of the court below dismissing the bill of complainants, with costs to the appellee, James Burnsides, Jr., and thirty dollars damages.
Decree Affirmed.