Pearson v. Wartman

Robinson, C. J., delivered the opinion of the Court. The question in this case is, whether certain legacies in the will of Charles Hoffman are charged upon his real estate? ' The testator gave to his wife two thousand dollars absolutely, and then he gave to her all his real and personal estate for life, and after her death, he gave pecuniary legacies to some twenty odd persons, amounting in the aggregate to forty-five thousand dollars. The rest and residue of his estate he disposed of in the following language: “ I give, devise and bequeath the remaining portion of my estate, first, to Alfred Bennett, two shares; to Mary Jane Hay, of the town of York, Pa., one share; to Maria, wife of Dr. Danl. P. Hoffman, one share; to Charles A. Wart-man, one share; to Mrs. Eliza Rhodes, my niece, one share; to my sister, Louisa C. Jones, one share.

The shares to be alike and of equal value.” The wife survived the testator about twenty years, and upon her death, the personal estate, which had been given to her for life, proved to be insufficient for the payment in full of the legacies. This will having been executed prior to the Act of 1894, ch. 438, the question is not affected by that Act, which provides : “In all wills hereafter executed the real estate of every testator not specifically devised shall be chargeable with the payment of pecuniary legacies, wherever the personal estate, after the payment of debts, shall prove to be insufficient, unless the contrary intention shall clearly appear.” ⁵³² Now, if the qnestion arising upon this will was one of first impression, and we had to construe it by the language in the will itself and without reference to the construction which has been put by this Court upon similar language in other wills, there would be, we must admit, much force in the ingenious argument of the counsel for the appellant. For where a testator gives certain pecuniary legacies, and then gives the remaining portion of his estate, “ or the rest and residue of his estate,” it may be fairly argued, that he meant the remaining portion of hiS estate, after the payment of the legacies. And since the decisions in Bench v. Biles, 4 Madd. 187, and Greville v. Browne, 7 House Lord Cases, 689, this may be considered the established rule in England.

But in this State, beginning with Stevens A Gregg, 10 G. & J. 143 , decided more than fifty years ago, and affirmed in Power v. Jenkins, 13 Md. 458 , and reaffirmed in the recent case of White v. Kauffman, 66 Md. 89 , it has been considered as settled law, that where a testator gives legacies, and then gives “ the remainder of his estate, real and personal,” or “ the balance of his estate,” or “ the rest, residue and remainder of my estate,” these and other like terms are not in themselves sufficient to show an intention on the part of the testator to charge the real estate with the payment of legacies. These cases all proceed upon the principle that the personal estate is the primary fund for the payment of legacies; and even where the real estate is expressly charged with the payment of legacies, no resort can be had to the real estate unless the personal estate is insufficient, or unless the testator has by his will exonerated the personal estate from the payment of the legacies. And such being the case, legacies are never charged upon the real estate, unless the testator so declares in express terms, or such intention can be fairly and reasonably inferred from the terms and disposition of the will. The mere fact that the. testator gives a legacy to one person and then gives the rest and residue of his estate to another, the residuary clause in itself is not ⁵³³ sufficient to show an intention to charge the legacy upon the real estate.

In Lupton v. Lupton, 2 Johnson’s Chancery, 638, where the residuary clause was in these terms : “ I give, devise and bequeath all the rest, residue and remainder of my real and personal estate not hereinbefore already devised and bequeathed,” Chancellor Kent says : “ This clause does not appear to me to afford evidence of an intention to charge the land with these pecuniary legacies. If that residuary clause created such a charge, the charge would have existed in almost every case,