Cissell v. Cashell

Bryan, J., delivered the opinion of the Court. We will state the proceedings in this case, so far as they are necessary to understand our opinion. Mary E. Cissell filed a hill in equity in the Circuit Court for Montgomery County for the purpose of enforcing an alleged charge on a certain tract of land for the payment of a proportional part of a legacy. It appears that Samuel S. Cashell by his last will and testament devised lands to his sons John and Tilghman in fee simple, and that he also made the following devise : “I give and devise unto my son, John Henson Cashell, the one-half of a tract of land purchased by me from Dr. Washington' Waters, on which my son, George Columbus Cashell, now resides ; said one-half of said tract containing one hundred and thirty-three and one-third acres of land, it being part of a tract called ‘Charles and Benjamin,’ in trust, nevertheless for my son, George Columbus Cashell, during his life-time, and after the death of the said George Columbus Cashell, to the heirs of the said George Columbus Cashell, in fee simple, it being the object, purpose, and intent of this trust that the said land shall be held by said trustee, for the support of said George Columbus Cashell and his family, and the said George Columbus Cashell shall he at liberty to reside upon the same and conduct the farming operations thereon, accounting for the issues and profits of the same to the said trustee.” He also gave legacies in the follow ³³³ ing terms : “I give and bequeath unto my daughters Achsah Ann Huguely, wife of Charles Huguely, Mary Elizabeth Cissell and Emma Rebecca Be-11, wife of Silas A. Be-11, the sum of two thousand live hundred dollars each, the said legacies to be paid out of my personal estate as far as it will go, the balance, if any, to he paid to them by my three sons in equal portions.” The personal estate of the testator was insufficient to pay the legacies in full ; but'paid a little more than one-fourth of their amount.

The question in this case is whether the land mentioned in the devise just quoted can be subjected to the payment of a proportional part of the legacy bequeathed to Mrs. Cissell. A testator may charge his lands with the payment of legacies if he sees fit to do so ; but they are never charged unless that is his intention. And this intention must be expressly declared or fairly and satisfactorily inferred from the language and dispositions of the will. There can be no doubt whatever about this general rule.

Owens vs. Clator, 56 Md., 129 ; White, Ex’r, et al. vs. Kauffman, et al., 66 Md.,