Hutchinson v. Fuller , 1 Ga. L. Rep. 232 ( 1886 )

Jackson, Chief Justice.

The only question which this record makes arises out of the 10th item of the will,' the whole of which will is reported at the head of this opinion by the reporter. That contest is between the legatees under that 10th item and the residuary legatees. If the word “first” in that item means that the legatees under it are to be paid before anybody else out of the realty or its proceeds, and if there be not enough realty or proceeds of realty to pay them $18,000, then they are to get no more out of the rest of testator’s property, then the residuum cannot be encroached upon to make up the deficiency, and the residuary legatees will take the whole residuum; but if the word “first” is used simply to show from what property the legacy of $18,000.09 is first to be raised, then the legacy is demonstrative ; it is a legacy of that sum of money, to be raised, if it can be, out of lands or their proceeds, but if all of it cannot be so raised, then the deficiency is to come out of the residuum.

The language is: “1 bequeath unto Dr. Thomas B. Hutchinson, of the county of Oglethorpe, in trust, the sum of eighteen thousand dollars first to be taken out of proceeds of sale of realty,” etc.; then follows the cestuis que trust, etc. We think that these words make a legacy of $18,000.00 in money to these eestuis qu,e trust, to be raised out of the proceeds of realty first, but if that fund be not enough to raise-$18,000.00, then the balance of the estate, except specific legacies, must supply the balance of the legacy of $18,000.00. Or, in other words, that the legacy is not specific, that is, of any particular property, but general, of so much money, to be raised first out of the proceeds of the sale of the realty and the conversion of those proceeds into bonds; secondly, or next, or afterwards, out of the residuum, thus demonstrating or showing how this general legacy in money is to be raised, and thus making it a general legacy, demonstrative of the fund first to be applied to its payment. 2 Bouvier, “Legacy;” Reese on Ex’rs, p. 256; 2 Wms. on Ex., 995, and note, pp. 1000, 1003, 1132; 1 Roper on Leg., 153-4; 11 Am. Dec., 458, 469; 7 Johnson’s Chan. R., 258; 1 P. Wms., 777; 4 Vesey, 751; 1 Desau. S. C. Chan., 202; 16 N. Y., 365; 25 Id., 128; 63 Penn. St., 312, 316; 47 Ala., 554; 56 Md., 222; 2 Leading Cases in Eq., 479, and many other cases cited by defendants in error.

There is nothing in our own statutes or decisions which conflicts with these authorities; but outside of all of them, we are clear that this construction gives to the will the intention of the testator, which at last is the prevailing rule, before which all others bend.

The language further on in the 10th item clinches the correctness of our construction. That language is : “ The other third of said eighteen thousand dollars or bonds and securities into which it may be invested, I bequeath,” etc., not the other third of lands, but of money or its equivalent in bonds and securities into which the land might have been turned under the former direction of the will. Why use the words “ of said eighteen thousand dollars ” if the testator’s intention was not to give these persons eighteen thousand dollars in money or its equivalent ? If only the land was to go to them, or a part of it, how easy to have said so ? To say, I give in trust to them $18,000.00, if my lands will bring so much, if not as much as it shall bring, was quite easy, and would have been clear in favor of the residuary legatees. To say the $18,000.00 is first to be raised out of the lands or proceeds, implies conclusively— necessarily, in our judgment—that the lands failing to raise it, some other property of testator’s must raise it, and nothing but the residuum is left to raise it.

Judgment affirmed.