Budd v. Williams , 1867 Md. LEXIS 7 ( 1867 )

Goldsborough, J.,

delivered the opinion of this Court.

The appellant filed his bill of complaint in the Circuit Court for Charles county, to recover a legacy of $3,000, conditionally bequeathed by the will of William Budd to him, his brother, William, and his sister, Sarah Ann Budd, to be equally divided between them.

William and Sarah survived the testator, but have since died, leaving the appellant, as he alleges, their only next cf kin.

“It is agreed by the parties litigant that their object is to ascertain whether, by the true construction of the will of William Budd, the land willed to William F., Burgess, under whom the appellees claim, is liable for, or chargeable with, the legacy of $3,000 left to the appellant and his brother and sister ; all questions as to how the appellant is to receive or to be entitled to the portions of his deceased brother and sister, whether by survivorship or ctherwise, is waived, as that is a matter in which the respondents have no interest or concern.”

The Circuit Court, upon final hearing of bill, answer, exhibits and agreements, dismissed the bill, and from its decree this appeal is taken.

In reviewing William Budd’s will, we find that he says he is desirous to settle his worldly affairs, and with that intent he gives to his wife all his estate, both real and personal, during her life, she to be at liberty to devise all the negroes and their increase, that came by her with the plantation on which his uncle, Lott Mason, lived and died, together with the stock, furniture left by him, and the cro'p on hand. After her death, he devises the several tracts of land named in the second clause of his will, to William F. Burgess and his heirs. By the fourth clause, he gives to his brother, John Budd’s children, viz: William, John and Sarah Ann, after his wife’s death, all his negroes, (except one given to Ann Burgess,) to be equally divided between them ; and then provides “in case the title to the land willed to William F. Burgess should prove a valid one, I give, devise and bequeath to the aforesaid William Budd, John Budd and Sarah Ann Bndd, the sum of $3,000 to be equally divided between them or their heirs, but should the title to the land as aforesaid bequeathed and given to William F. Burgess, called Honesuch, or to laud attached thereto constituting the Ferry Plantation, prove not valid, the above legacy of three thousand dollars is not given to the said William, John and Sarah Ann Budd, as aforesaid.”

Lastly, the testator constituted his wife and his friend, William F. Burgess, his executors.

Burgess survived the testator, but died in the lifetime of Iris widow. After her death, the real estate descended to the appelleo, Elizabeth Ann Williams, as the heir-at-law of Burgess. After the death of the widow of the testator, the appellee took possession of the estate. The title thereof was in litigation at the time of the execution of Budd’s will in 1840, and was finally settled in 1853, in favor of the testator or those claiming under him.

It is agreed that on the final settlement of the personal estate of William Budd in 1842, there was a balance of $12,316.89, subject to distribution amongst the next of kin of the testator, and that the children of John Budd named in the will were the next of kin.

As the true construction of the will can be arrived at more certainly by an analysis of it, it may conduce to thai end to noto the items seriatim.

The testator expresses his desire to settle his worldly affairs. He then gives all Ms estate, both real and personal, to his wife during her life. Here, it is to be observed, that with the exception of his negroes, he gave to her the power of disposition of the general personal estate, and the most of that would be embraced by the principle laid down in the case of Evans vs. Iglehart, 6 G. & J., 171, viz., when any article of personalty bequeathed to a legatee for life, is of such a nature that its use is its consumption, the legatee takes the absolute property in the thing bequeathed. In the absence of any inventory of the personal estate of William Budd, we are left to infer that the negroes bequeathed to the Budds, and the one to Ann Burgess, constituted the bulk of the personalty embraced in the balance for distribution.

While the law is too well established to need a citation, of authority to support it, that the personal estate is the primary fund for the payment of debts and legacies, and to exempt that estate from the payment thereof, there must be either express words or a plain intention, still, the intention may be found, not only in the mode in which the personal estate is given, but also in the manner in which the real estate is given. See 1 White & Tudor’s Leading Cases, 451. Looking, then, to the fourth clause of the will under consideration, we find that the legacy of the negroes to the Budds is positive and absolute. If the testator be presumed to know the testamentary laws of the State, it would be difficult to account for his conduct (if he did not intend to charge the real estate) in giving to Ms nephews and neice the positive legacy of the negroes and then give them a contingent legacy of $8,000, which, according to the theory of the appellees, was to be paid out of the personal assets. Such a theory would present the anomaly of taking from the legatees their negroes to pay their contingent, legacy, when in fact they had the right to demand their negroes in a due course of administration. Such a result would have left the personal estate unadministered from 1842, when the final account was passed, until 1853, when the title to the land was settled. It is equally difficult to conceive what motive the testator had in so intimately associating the legacy of $3,000 with the title to the land devised to Burgess, if he did not intend to make it a charge on the land. The legacy is void If Burgess gets no title. If he gets it, he does so to the prejudice of the heirs-at-law, of the testator, and though it does not distinctly appear that the children of his brother, John, were the heirs-at-law. yet it may be inferred that such was the case, and if so, the legacy may have been presumed to have been left to them as a compensation for the loss of the real estate.

If this construction be not put upon the fourth clause of the will, the provision which makes the legacy dependent on the contingency of Burgess’ obtaining the title, is wholly without meaning.

Bearing in mind that the will is inartificially drawn, allowance must he made for the failure of the testator to use specific terms by which to charge the real estate. It is, however, conceded by the appellees, that a charge upon real estate may be by necessary implication, especially where the testator clearly indicates his intention that his personal estate should not he so applied.

We think the intention of the testator in this case is so obvious to charge the legacy upon the real estate and to regard that as the primary fund, that in conscience the personal estate ought to be exonerated because only auxiliary. Bee 1 Story’s Eq. Jur., sec. 574.

It is insisted by the appellees, that whore there is a sufficiency of personal estate to pay all debts and legacies undisposed of by the testator, the land is exempt from ike charge upon it. We have before said, that in the contemplation of the testator he designed to dispose of the whole-estate, both real and personal.

( Decided January 23rd, 1867.)

Had the testator directed the devisee of the real estate to pay the legacy of $3,000, this case would have been in strict accordance with the case of Crawford vs. Severson, 5 Gill, 443. We think the implication is so strong as to amount to a positive obligation. In the case in 5 Gill, the-infant heirs of John Severson, in their answer, urged that Thomas Severson left a large personal estate, much mor© than sufficient to pay all his debts and legacies, and yet this Court found, from the context of the will, enough to sustain the claim of Sarah Denny as a charge upon th© seal estate devised tq John and Samuel Severson.

After a careful consideration of this ease, we think that Burgess took the lands devised to him with the condition clearly implied, that if he obtained a good title he should pay the legacy of $3,00®, and that it was a charge- on the land.

This Court will sign a decree reversing the decree of th© ■ Circuit Court with the costs of this appeal to the appellant, and remanding the cause for further proceedings in conformity to- our ©pinion.

Decree reversed.