McChesney v. Bruce ( 1851 )

Mason J.,

delivered the opinion of this court.

The question involved in this case, in our opinion has been settled by the Court of Appeals, in the case of Walters vs. Walters, 3 Har. and John., 201, which decision was after-wards recognised and sanctioned by Chief Justice Buchanan, in Bell, vs. Holmes 6 Har. and John., 228. Although in the former case, that part of the court’s opinion which related to the clause in the will, resembling the one now before us, was lost, still it will be found on an examination of the case, that the question whether the terms “remainder of my estate,” were to be confined to the personalty, or were to be regarded as carrying the whole of the testators property real and personal, was distinctly presented and decided by the court. That case was a stronger one than that which is now before us. There the testator in the different items of the will, was dealing indiscriminately with real and personal property; here the entire will is taken up with the disposition of personal property alone, and according to the maxim noscitur a sociis, it would seem proper to confine the word “estate” to the personalty, as was done in the case of Walters vs. Walters. The language employed by the testator, “together with all the residue of my estate,” is unquestionably sufficient to pass real estate, unless restrained by other words intimately connected with the devise, or unless so associated with bequests of personal property, as to show that the testator meant to use the language as merely applicable to personalty. We are warranted by the authority cited, in stating that the generality of these words are restricted by antecedent bequests, in such a manner as to confine them to the personal estate. It must be conceded that there is some conflict of authority upon this subject, both in England and in this country, but not regarding it as an open question before this court, we do not feel disposed, or think it necessary, to enter into an examination of the numerous cases in which the question has arisen. Many of the cases which have been relied upon to support a more liberal construction, and which appear to resemble the present case, will be found on examination to have extended the words, estate, property, and the like, to the realty, because there were other words in the devise sufficient of themselves to carry all of the personalty, and that as a consequence, the testator must have designed giving a larger and different meaning to the language subsequently employed.

Among the strongest cases cited in support of the construction adopted by our own Court of Appeals, is the case of Ballard vs. Goff, 20 Pick., 252. By reference to that decision it will be found, that that learned court fully sustains the result which we have reached in the case we are now considering, and that the law is clearly and forcibly stated, and many of the leading cases cited and reviewed.

The county court was in error, we think, in the constructiou it has given to this will, and in sustaining the demurrer to the bill. The demurrer should have been overruled, and the defendants required to answer.

Decree reversed and cause remanded.