106 Neb. 173 | Neb. | 1921
The sole question involved in this appeal is whether or not certain bequests in the last will and testament of John Strolberg, deceased, are chargeable upon his real estate upon deficiency of personal estate with which to pay them. The executor filed his petition for license to sell the real estate for that purpose. The widow, and a minor child and devisee by his guardian ad litem, filed objections on the ground that the real estate was not liable; the trial court dismissed the petition, and the executor appeals.
The will consists of numerous articles, first of which is a direction to pay debts out of the personal estate. Each of the next seven articles of the will contains a bequest to a different branch or foundation of the Swedish Lutheran Church. These bequests, aggregating $2,500, .are in the following form, differing only as to name and .amount: “I give, devise and bequeath to the Augustana' College and Theological Seminary,- Rock Island,1 Illinois, the sum of two hundred and fifty dollars ($250.00).” Next after the foregoing bequests is the following paragraph : “All the foregoing bequests being special in their nature as above set out and made to the various benevolent and charitable institutions shall be paid out of my personal estate and the executive board or the proper officers of the same who are competent to receive such bequests by my executor who shall take their receipts for the same in full settlement of the various devises so made.”
Succeeding articles of the will set forth that the testator
The will was duly probated and the executor qualified. The money and personal property of the estate, amounting to about $1,000, sufficed to pay the debts and expenses of administration, but was not enough to discharge the seven bequests to the various church organizations.
The principles that govern this case are, in substance, that legacies, as a general rule, are payable primarily out of the personal estate of the testator, and that real estate will not be charged with their payment unless the inten
The principal facts relied upon as disclosing that intent are, first, the language of the residuary clause in which he devised “all the rest and residue of my property, both personal and real, not hereinbefore devised” to certain persons upon certain contingencies. Counsel for the appellant argue that, as “residue” means that which is left over after the previous dispositions of the will have been carried out, the testator must have meant that his real estate as well as personal property should be looked to for the payment of the legacies; second, that, as shown by testimony introduced by the appellant, the testator never had so large a sum as would be required to pay these legacies for any considerable time; that he was in the habit of keeping his money, as it came in, closely invested, it being customary with him to purchase small rental properties in the city of Kearney. Three of these properties he had acquired before August, 1911, when the will was made, and he purchased five others after that time at prices ranging from $820 to $700., Counsel deduce from this that, in view of his settled habit of investing in these small properties instead of allowing his money to accumulate, he could not have intended to limit the payment of legacies to money or personal property, of which he did
The testator made but^one specific devise of real estate —the 80 acres to his son John Walters, subject to the life use thereof by the widow, and subject also to the specific legacies to his grandchildren. No specific devise of real estate in fee Avas made to the widow.. He gave her only the income until John Walter became of age. All the real estate other than John Walter’s 80 acres was part of the residue, so far as the fee is concerned. This consisted of the Holdrege and Kearney city property, the income from which was devised to the widow, and there was no other property included in the residue, because the personal property was either specifically bequeathed to the widow or consumed in paying debts and expenses of administration.
A rule to which sanction has been given by this court is that, when pecuniary legacies are given in the will and there is a gift of the residue, both real and personal, the residue being blended in one mass, the presumption arises that the testator intended to charge the entire residuary estate with the payment of the legacies, for the reason that, in such case, the residue can only mean what remains after satisfying the previous gifts. Klug v. Seegabarth, 98 Neb. 272; Lewis v. Darling, 16 How. (U. S.) 1; Coon v. Coon, 187 Ind. 478; Reynolds v. Reynolds, 27 R. I. 520; Bird v. Stout, 40 W. Ya. 43; Lacey v. Collins, 134 Ia. 583; Paterson General Hospital Ass’n v. Blauvelt, 72 N. J. Eq. 725; Turner v. Gibb, 48 N. J. Eq. 526.
Appellees contend, however, that any presumption which might ordinarily arise from the language of the residuary clause that the testator intended to charge the legacies upon real estate is rebutted by the express provision in the will stating that the 'bequests in controversy were special in their nature and directing that they be paid out of the personal estate. Counsel argues that the testator thereby gave conclusive evidence of his intention
Assuming that such was the testator’s meaning, what effect must be given to the direction that the legacies be paid out of his personal estate? Is it to be taken as a positive affirmation of the testator’s intent that the per-* sonal property should alone be chargeable? Such intent, according to the rule, is presumed in the case of every pecuniary legacy, unless it appears that resort to the real estate in case of deficiency of personal assets was intended. It is equally the rule, as we have seen, that if there is a devise of the residue, both real and personal, in one mass, after pecuniary bequests, it is ordinarily sufficient proof of intent to charge the realty. Is that proof of intent overcome and rendered nugatory in the case before us by the express direction that the legacies be paid out of the personal property? In our view, that was simply a statement of what the law would have implied if that direction had been omitted from the will. The law makes the personal property the fund for the payment of legacies in the absence of any direction. But there was nothing in the language directing that the legacies be paid out of the personal property which would indicate a deliberate intent to debar the legatees from resorting to
Counsel for the appellees contend, however, that the residuary clause should not be interpreted as showing an intent to charge the real estate, because it is lacking in such qualifying words as “after the payment of legacies,” following the word “residue,” to indicate that legacies were to be dediicted, and that there was no power of sale to the executor, which would have been a further indication of the testator’s intent to make the real estate liable. In none of the cases cited in support of the rule above referred to was it deemed necessary that the word “residue” should be qualified, as contended by counsel, or that there should be an express power of sale, in order to make the residuary clause effective to charge real estate included therein with the payment of legacies. The rule is one of implication arising from the blending of the real and personal estate in the residuum and from the fact that the word “residue,” if real estate is expressly made a component part thereof, means that part of the real estate, not specifically devised in the preceding portions of the will, remaining after the prior dispositions of the will have been satisfied. This rule is unaffected by the fact that there are no precise words referring to the payment of legacies in the residuary clause or that no express power of sale is given.
As strengthening the presumption arising from the rule just discussed, the appellant relies also upon the testimony relating to the financial condition of the testator
Effect should be given to all of the provisions of the will if, in the light of the surrounding circumstances, it can be done consistently with the recognized rules of construction as to the testator’s intent. Coon v. Coon, 187
It is our conclusion that the extrinsic evidence, taken in connection with the language of the residuary clause, established the testator’s intent to charge the payment of legacies upon the real estate included in the residue, and we therefore recommend that the judgment appealed from be reversed and the cause remanded.
Per Cijriam. For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded, and this opinion is adopted by and made the opinion of the court.
Reversed.