Matthewson v. Saunders , 11 Conn. 144 ( 1835 )

J. The

only question raised by the demur- rer to this bill, is, whether certain bequests to the plaintiff are a charge on the real estate devised, in the will, to the testator’s son Israel. The

opinion which we entertain on this question, and which is soon to be expressed, does not embrace the legacy of 333 dol- lars, 34 cents ; it having been admitted, by the counsel, that a satisfactory provision for its payment, has been made : nor does it embrace any portion of what the testator denominates “ privileges,” which constitute a legal interest in the land and buildings ; for if she has been deprived of the enjoyment, or interrupted in the use of them, she has adequate remedy at law. The controversy between the parties, is confined to the other “ privileges” granted to the plaintiff, and is limited to the single point, whether she can resort to the real estate devised to the son of the testator, (which has been conveyed by him to other persons, with full knowledge of the provisions of the will and of the claim now made by the plaintiff,) in a case where the devisee is insolvent; his surety in the bond to the court of probate for the due settlement of the estate of the testator accor- ding to the will, is also bankrupt; where there has been an en- tire neglect and refusal to provide for her conformably to the will; and where all other means of obtaining such provision, have failed. The

principles which are to be applied to this case, have been so long and are so firmly established, as not now to be contro- verted. They are admitted by both parties, to be eminently just, and sustained by unquestionable authority: and the case turns upon the proper application of them, to the facts alleged in the bill, and admitted by the demurrer. This

court has repeatedly held, “ that pecuniary legacies” legacies” (and the bequests, in this will, to the plaintiff, may be considered as of that character, in reference to the question submitted to us) "are never to be charged on real estate, unless such an intention be clearly expressed, by the testator." Gridley & al. v. Andrews & al. 8 Conn. Rep. 1. “ As to legacies, there must be a clear manifest intention that the devisee shall take subject to the legacies.” Swift v. Edson & al. 5 Conn. Rep. 531. Such, also, are the decisions in Great-Britain and elsewhere. Kightley v. Kightley, 2 Ves. jr. 328. Keeling v. Brown, 5 Ves. 359. Shallcross v. Finden, 3 Ves. 738. Lupton & al. v. Lupton & al. 2 Johns. Ch. Rep. 614. This rule has been adopted, to prevent unreasonable restraints upon the alienation of real estate. It has been deemed unwise, and op- posed to the policy of our institutions, to raise incumbrances and charges on real property, by legal construction, and thus pre- vent a free and absolute disposition of it, where the intent to create them, is doubtful, and the language of the grantor or devisor is equivocal, admitting of different interpretations. It is, however, equally the policy, the justice and the equity of our laws, to give effect to the intention of a testator, where it is lawful, consistent with the general rules of law, and declared with the necessary legal formalities. With these qualifications the intent of the testator expressed in his will, as to the dispo- sition of his property, is the law of alienation, to which courts are bound to conform, and which they are required to carry in- to effect. Our citizens are permitted to select the objects of their bounty, and to provide both the extent and the manner of its enjoyment. “ The intent of the testator, is the cardinal rule in the construction of wills : and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail.” Finley & al. v. King, 3 Peters 345. It is “ a cardinal rule in the construction of wills, that the intention of the testator is to be sought after and carried into effect.” Id. 113. Judd & al v. Bushnell & al. 7 Conn. Rep. 205. “ It is undoubtedly true, that in giving a construction to a last will and testament, the intent of the testator is to prevail.” Gridley v. Andrews, 8 Conn. Rep. 1. Bull & al. v. Bull & al. 8 Conn. Rep. 47. Wigg v. Wigg, 1 Atk. 382. This intention is to be collected from the whole will, and not from detached portions of it. This is a rule of construction equally applicable to wills, and other written instruments. Jackson d Van Vechten & al. v. Sill & al. 11 Johns. Rep. 201. Jackson d. Herrick & al. v. Babcock, 12 Johns. Rep. 389. 4 Kent's Comm. 534. Mann & al. v. Mann & al. 14 Johns. Rep. 1. Westcott & al. v. Cady & al. 5 Johns. Ch. Rep. 334, Willett v. Sanford, 1 Ves. 186. Nightingale v. Sheldon & al. 5 Mason 336. Although the real estate is not always, and as of course, charged with the payment of legacies, or other bene- ficial bequests, yet whenever the intention to create such charge, is declared, in express terms, or may he clearly and satisfacto- rily inferred from the whole will, reference being had to the language used, the dispositions made, and the objects contem- plated by it, full, effect will be given to the intention, and the real estate will be made applicable to the payment of the lega- cy or bequest, whenever, and so far as. it is necessary to enable the legatee to enjoy the bounty of the testator.

With theseprinciples in view, an answer to a single enquiry disposes of the whole case. Does it clearly and satisfactorily appear, from the will of Israel Mathewson, that it was his in- tention to charge the real estate devised to his son, with the- payment of such of the bequests, or, as they are called, “ privile- ges,” given to the plaintiff, as are the subject of the present con- troversy ? We think

We thinksuch intention does so appear, and that any other construction of the will, would do violence to the language of the testator, and defeat his benevolent object cf making a per- manent and secure provision for the support and comfort of his unmarried daughter. It is

It isvery clear, that some of the bequests, are made a direct charge on the real estate, because they are the produce, of it. The son is to provide for the plaintiff, “ what apples, potatoes, and sauce of all kind, produced on said farm, she may neces- sarily want.” Two cows and five sheep are to be kept on the farm, by the devisee, for the plaintiff, and are “to be kept as well as any cows or sheep on the farm" The swine and fowls, for her use, are also to be kept on the farm. She has a clear and indisputable right. by the terms of the will, to have such use of the farm, (through the devisee of it.) as is necessa- ry for the above purposes. The intent of the testator, in this respect, is expressed in language clear and explicit. We think it not less clear and satisfactory in relation to the other bequests; It was, obviously, his expectation that the son and daughter and daughter would live on the farm; and it was his intention to provide for the latter, a home, and a comfortable and permanent support. His other daughters were married; and to them, small pecuniary legacies only, were given. The plaintiff required more aid than her sisters. She was unmarried, and had no home but the paternal mansion, and no means of support, except such as should be provided, by parental kindness and affection. The testator, therefore, appropriates a part of the dwelling-house and appurtenances, for her use; directs the devise to furnish her with fuel ready for use, and to perform the labour of "putting on the logs;" and then makes provision for the supply of articles of food for her sustenance and confort; all of which are such as are ordinarily raised on the farm. The "cider is to be put into her cellar, and her grain to be taken to the mill to be ground, whenever requested." In all this, the intention is apparent, to provide for her support, on and from the farm. There, she is to reside; over it, she is permitted to pass at pleasure; and fromit, through her brother, the devisee of the real estate, she is to derive what her father deemed a suitable, reasonable and permanent support. He designed to make the whole provision secure to her. It cannot be supposed, that he intended to discriminate between different portions of it, and to create a charge on the land, in favour of the plaintiff, as to the vegetables, to keep for the cows, sheep, swine and fowls, and not as to the articles with which she was to be furnished. However inartificially this will may have been drawn, and though it bears the marks of having been written, by a man whose language is far from being always accurate, we cannot infer, that the testator intended his daughter should be fully protected in the enjoyment of the small benefits (which he certainly made a charge on the real estate,) and left to depend, for the principal part of her support on the personal responsibility of her brother. The whole structure of the will, its language and object, are opposed to such a construction. No obligation was imposed on the son. merely as executor, to pay these bequests. The testator did not contemplate the payment of them, in that character. It was made his duty to provide for the plaintiff, "in consideration of his having the whole real estate." The provision was designed as one which she could realize and enjoy. It was not made subject to contingencies; was connected with the use of the farm, to arise from the improvement of it; and was to be enjoyed so long as the testator supposed the necessity of continuing the precision might exist, until she married and had another home, and a legal right to support and maintenance from another source. We think, that in this construction, which we give to the will, making the bequests contained in it, to the plaintiff, which are the subject of the present controversy, a charge on the real estate devised to the son, we follow the expressed intent of the testator ; promote the meritorious object he had in view ; do but a mere act of justice to the plaintiff; and apply to the devisee of the real estate and those who claim under him, the equitable rule which this court applied to a defendant in another case : “ He who accepts a benefit under a will, must conform to all its provisions, and renounce every right inconsistent with them.” Judd & al. v. Bushnell & al. 7 Conn. Rep. 205.

Our opinion is, that the bill is sufficient, and that the demurrer should be overruled: and the superior court is to be so advised.

Williams, Ch. J. and Bissell and Waite, Js. were of the same opinion. Church, J. not being present at the consultation, gave no opinion.

Demurrer to be overruled.