Iglehart v. Kirwan

Tuck, J., delivered the opinion of this court. Samuel J. Meekins disposed of his property, by will, in the following words: “I give and bequeath all my real, personal and mixed property to my beloved wife, Eliza Caroline Meek-ins, during her natural life, provided she does not many again, but if she should marry again then she is to have one-third of my estate during her natural life, the balance of it to be equally divided among my children. Item. I give and bequeath unto the creditors of John Linthicum, late of Anne Arundel county, Maryland, deceased, a sum of money sufficient to make up their loss in his final account, as passed by Dr. Wilson Waters, his executor.” The appellant filed his petition in the orphans court, showing himself to have been one of these creditors, in which he claimed the balance due him by the estate of John Linthicum, and interest thereon from 1830, when the distribution of that estate was made among his creditors.

By an amendment of the record it appears, that the testator’s property, after paying debts and charges of administration, amounts to a sum more than sufficient to pay the legacies to Linthicum’s creditors, without impairing what would have been his wife’s share of his estate, if he had died intestate. We are, therefore, relieved from the duty of passing upon the argument of the appellee’s counsel as to the wife’s being a purchaser, for a valuable consideration, of what she may-take under the will. The questions before us are: — 1st, as to the time of payment of the legacies to Linthicum’s creditors; and 2d, whether they are entitled to receive only the amounts due by the final account on his estate, or those sums with interest from the time of its passage ? We must so construe this will as to give effect to every part of it, if we can, and the whole must be considered in order to ascertain the testator’s intention.

The two clauses or items of the will are plain enough when read separately. But when ⁵⁶⁴ compared there is a partial contradiction, because the last cannot be gratified without taking so much from those provided for by the first clause. In cases of repugnancy where the clauses cannot stand together, and have effect, it has become an established rule, that the gift which is posterior in local position shall prevail, the subsequent words being considered as denoting a subsequent intention. But it is, also, an invariable rule, not to disturb the prior devise further than is absolutely necessary for the purpose of giving effect to the posterior qualifying disposition. 1 Jarman on Wills, 411, 414.

According to this principle, the- last bequest in this will must be taken as a revocation pro tanto of the first. This conclusion we take to be warranted by the principle of several adjudged cases. In Croke Eliz., 9, Case No. 2, Anderson, Ch. J., said, “that, if one devise land to J. S. in fee, and after, by the same will, devise that land to J. D. for life/both parts of the will shall stand, and, in construction of law, the devise to J. D. shall be first.” In Sayer vs. Sayer, Prec.

Chy., 393, Ward on Legacies, 378, the Lord Chancellor, in pronouncing the decree said: “But the case may so happen that a specific legacy shall be chargeable 4dth the payment of a pecuniary legacy, as in this case, after he had devised his personal estate in Wamsted, if he had likewise devised his personal estate at such another place, and then devised 300of out his personal estate, and died, leaving no other personal estate than in the two places before mentioned, this 300=# legacy must have come out of his personal estate at large, in both places.” Now, the case put by the Lord Chancellor is like the one before us, with the exception of the words italicized. In both wills the whole estate is parted with, and afterwards, pecuniary legacies given to other persons. W.e do not perceive that the words, “out of his personal estate,” can give effect to the last legacy in one .case, and that it must fail in the other, or be postponed for the , want of such words. If they had not been inserted, the legacy, if paid at all, must have been satisfied out of the estate previously bequeathed, because there was no other fund wherewith it could be satisfied, and the same is the state of things here. ⁵⁶⁵ In Ridout vs. Dowding, 1 Atk., 419, Lord Ch.

Hardwicke thus stales the case: “A testator in the first part of a will gives his wife an estate for life in particular lands, and in the latter part creates a term for years, to take place from the day of his death, in trust for raising sums of money to discharge his debts, in such manner as the wife should direct. The question is, whether the wife is entitled to have her estate for life discharged of the term. Notwithstanding the testator has, in the outset of his will, given her an estate for life, yet I am of opinion the term, though subsequent, shall take place of the wife’s estate for life. It is immaterial how a testator places the several devises in a will, because the whole must be construed together, so as to make it consistent.” In the case of Ulrich vs. Litchfield, 2 Atk., 372, this y-file of construction was applied with more strictness, the Lord Chancellor being of opinion, on the particular terms of the will, “that the testator had made an alteration in her intention throughout,” and that the party claiming under the first clause was entitled to nothing.

But he remarked, “it is truly said that a man may give the whole in a former part, and qualify it afterwards, and still the first legatee is entitled in part.” In 1 Jarman, 416, this case is stated, “where a testator, after devising the whole of his estate to A, devises Blackacre to B, the latter devise will