Cunningham v. Spickler , 4 Gill 280 ( 1846 )

Spence, J.,

delivered the opinion of this court.

This is an appeal from the equity side of Washington county court, overruling exceptions to, and finally ratifying, the account and statement of the auditor.

The subject of review, is the construction of the will of Smnuel Stickler, and is presented by the eleventh and twelfth clauses of that instrument, which are as follows:

“It is my will, and I do hereby order and direct, that five years after my decease, my sons, John, Samuel and Jacob, pay to my son Martin, and my daughter, Elizabeth Sleigh, the sum of one hundred and eighty dollars, that is, ninety dollars to each,- and to be paid by them in the following proportions, viz: John and Samuel to pay two-fifths each, and Jacob to pay one-fifth; and on the following year, that is to say, six years after my death, my sons, John, Samuel and Jacob, are to- pay to my daughter Polly, or her heirs, the sum of five hundred dollars, John and Samuel paying two-fifths, and Jacob one-fifth; and on the following year, that is to say, seven years after my decease, my sons, John and Samuel, and Jacob, are to pay Martin and Elizabeth Sleigh, the sum of ninety dollars to- each of them, and to be paid by my sons in the same proportion as above, viz: John and Samuel to pay two-fifths each, and Jacob one-fifth, and so on yearly, and every year, until my daughter Polly shall have received the sum of nineteen hundred dollars, paying Polly alternately, and the interest to Elizabeth alternately.”

The twelfth clause is as follows:

“Item. — As it is my design, that my three sons shall pay to the children of my daughter, Elizabeth Sleigh, at her death, the sum of one thousand dollars, and the children of my son Martin, at his death, the sum of fifteen hundred dollars, and the interest on said sum to Martin, during his life, and to my daughter Elizabeth, interest of fifteen hundred dollars, during her life, and no longer.”

The question presented for our decision under these two’ clauses of Samuel Spickler’s will is, whether Martin Spickler and Elizabeth Sleigh took two legacies each, viz: the ninety dollars/ payable to each of them five years after the testator’s death, as provided by the eleventh clause of testator’s will, and the interest on fifteen hundred dollars, given to each of them for life, in the twelfth clause? or whether, the last legacy in the twelfth clause was substituted for the legacy in the eleventh, and they each took but one?

These legacies differ essentially, both as to the terms of payment, and amount to be paid. The legacy by the eleventh Clause, or the first payment of that legacy, is to be made five years from the testator’s death, and to be paid every alternate year, until the daughter, Polly, has received nineteen hundred dollars; that given by the twelfth clause, is to be paid annually from the testator’s death, until the death of the legatees.

The counsel for the appellant relied very much upon C. J. Kent’s opinion, in the case of Dewitt vs. Yates, 10 Johns. Rep., 158, but that case differs very widely from this; in the former case/ the same sum of money is given twice, in the same instrument/ to the same legatee. It is true, the learned judge in that opinion says, ‘‘the general rule on this subject, from a review of the numerous cases, appears evidently to be, that where the sum is repeated, in the same'writing/the legatee can take only one of the sums bequeathed. The latter sum is held to be a substitution, and they are not taken cumulatively, unless there be some evident intention that they should bé so considered.”

This case is clearly distinguishable from the one now under consideration; in the former case, the testator, Peter Yates, gave to his daughter Maria's children, of her body, two hundred and fifty pounds, each of them to have fifty pounds when they come of age, or when they, or each of them, should marry.

In a subsequent part of the will, the testator having devised the half of a farm to his son-in-law, Philip Vanderbergh, and his wife, and the other half to his wife, &c., directs as follows: In consideration of which, it is my will, and I do hereby order, “that the said Philip Vanderbergh, his heirs, &c., shall pay to the children of my said daughter Maria, to wit, Sarah, (the wife of the plaintiff,) John, Maria, Catalina, and Catharine, the sum of two hundred and fifty pounds, equal to six hundred and twenty-five dollars, to be paid unto them, and each of them, in sums of fifty pounds, as they shall respectively arrive at the age of twenty-one years, or on the day that they, or either of them, shall marry.” The only material variation in the two bequests is, “that in the latter instance, the legacy was charged upon Philip Vanderbergh, in respect to the real estate to him devised.”

In the case now under review, John Spickler, the testator, by his will, in the eleventh clause, gives to his son Marlin, and his daughter Elizabeth, the sum of one hundred and eighty dollars, to be paid to them five years after his death, and ninety dollars to each of them, seven years after his death; and so on, ninety dollars each, every alternate year, until his daughter Polly shall have received nineteen hundred dollars. By the twelfth clause, he gives to Martin and Elizabeth each, the interest of fifteen hundred dollars annually, from the death of the testator, until the death of the respective legatees. Can it be imagined, that legacies differing so essentially, as to time of payment, mode of payment, and amount to be paid, were intended by tlxe testator to constitute but one legacy to each of these legatees? Or, can it be gravely contended, that this case falls within the rule which C. Kent states, has the sanction of the numerous cases referred to in his opinion? Roper, in his treatise on legacies, on the authority of Windham vs. Windham, Finch R., 267, and Curry against Pile, 2 Bro. C. C., 225, announces it to be law, that “when the legacies given by the same testamentary instrument, to the same person, are of different amounts, the legacy shall be considered accumulative.”

Mr. Justice Aston, in his opinion in Hooley vs. Hatton, reported in a note to the case of Ridges vs. Robinson and others, 1 Bro. Ch. Cos., 389, where the Lord Chancellor says, the very able opinion of Mr. Justice Aston contains the whole doctrine of the law upon the subject. In that opinion Mr. J. Aston asserts, “that the law seems to be, and the authorities only go to prove the legacy not to be double, where it is given for the same cause, in the same act, and totidem verbis, or only with small difference.” The same judge, in the same case, uses this expression, “as to a larger sum, after a less, Ricard, 421, folio edition, says, where they are in the same instrument, the two sums are not blended, but the legatee has two legacies, and the heir must show, that the one was intended to be blended with the other, the presumption being in favor of what is written.” Decree affirmed without costs, and cause remanded for further proceedings.

DECREE AFFIRMED AND CAUSE REMANDED.