Devereux v. . Devereux , 78 N.C. 386 ( 1878 )

It thus becomes our duty to put a proper construction upon the words used in the will, and to ascertain and declare their true meaning and effect. The testatrix gives her entire estate, "real, personal, and mixed," without discriminating as to its different kinds, to her brother, John Devereux, for his own use, unless he should be insolvent, and in such event to be held in trust "for the benefit of his wife and children," and appropriates no special fund to the payment of the legacy to her niece, Rachel Jones. Instead of this, she charges the estate devised and bequeathed to John Devereux with the payment of the legacy, by declaring it to be "subject to the devises and bequests herein otherwise made." The legal effect of these provisions is the same as if those other devises and bequests had been directed to be taken out of the estate and the residue given to John Devereux.

In support of this construction, it is only necessary to refer to some adjudicated cases in our own reports. A legacy given "to be paid out of the testator's estate" is by those words charged upon the land which passes by the will. Bray v. Lamb, 17 N.C. 372; Biddle v. Carraway, 59 N.C. 95.

So a devise of land to one, he paying to each of two persons a certain sum of money as they respectively arrive at 21 years of age, is charged with the pecuniary legacies. Aston v. Galloway, 38 N.C. 126.

2. Admitting this to be the legal operation of the will as first made, our next inquiry is as to the effect of the codicils upon their testamentary dispositions.

The first codicil substitutes, in place of the annuity before given, a bequest of the principal sum, the interest of which was the measure of value of the annuity, and gives also to each one of the three sisters of the testatrix a legacy of $1,000. It is evident she did not (390) intend by thus enlarging her bounty to this legatee to withdraw or impair the security already provided for its payment, or in any manner injurious to her to change its relation towards the general estate. We are not without authority to sustain this conclusion.

In the case already cited (Biddle v. Carraway) the testator had in his original will charged his estate with the payment of a legacy of $1,500 to his wife, and by his codicil reduced the sum to $750. It was claimed that the codicil revoked the force of the expression contained in the will. The Court declared that no such result followed, and that the testator's intention manifestly was only to lessen the amount of the legacy, and quotes with approbation the following language, in regard to the effect of a codicil, from Jarman on Wills: "It is an established rule not to disturb the dispositions of the will further than is absolutely necessary for the purpose of giving effect to the codicil."

If a codicil diminishing the amount or value of a legacy merely is not allowed to annual or impair the security by which it is protected, still less can a codicil, increasing the legacy and indicating a more liberal disposition towards the legatee, have such effect.

3. We think the additional legacies to the sisters are also a charge upon the estate, and for these reasons:

(1) There is no fund out of which they can be paid except that devised to John Devereux, and unless it is charged, those legacies are negative.

(2) They are placed upon the same footing with the legacy to the niece, and it must be assumed are to be paid in the same way.

Associating the original will and codicil together and considering them as a single script, the additional legacies are within the words of the will and protected equally with the annuity and the legacy afterwards substituted for it.

It was argued before us with great earnestness that the second (391) codicil, in separating the personal from the real estate and changing the disposition of the latter, indicates the purpose of the testatrix to release the land from the burden of the legacies and charge the personal estate only with their payment. This intent, it is said, appears from the fact that the testatrix supposed her personal estate amply sufficient for that end. In this we do not concur. It is obvious that the last codicil was not made to disturb the relations previously existing between the different objects of the testatrix's bounty, or the value of their respective interests under the will. Its purpose solely is to provide new channels through which the devised lands shall pass, so as to prevent them from being disposed of or used for the payment of the debts of John Devereux, and to secure the full benefits of the devise to his wife and children. This is the only change the codicil undertakes to make, leaving in force all her other testamentary provisions.

It may be true — perhaps it is true — that the testatrix thought her personal property was ample to meet the requirements of the pecuniary legacies; but this error of hers cannot affect the legal import and effect of the words she employs to convey her interest. She has in clear and unambiguous terms subjected her whole estate to the legacies, and we cannot exempt any part of it from an obligation she sees proper to impose. Our office is to arrive at the meaning of the testatrix by putting a fair and just interpretation upon her words, and to declare the legal construction and effect of her will as she has made it.

It may be suggested, however, as difficult to assign a satisfactory reason for charging the entire estate with the payment of an inconsiderable annuity, and exonerating a large part of it from the payment of the legacies, greatly increased in amount as given in the codicil, upon (392) the supposition that the testatrix did so under the belief that her personal estate was ample to meet the demands of all.

We therefore declare that the land is chargeable with the payment of so much of the legacies as shall be due after applying the personal estate thereto.

There is error, and the judgment below is reversed. Judgment will be rendered here in conformity to this opinion.

PER CURIAM. Reversed.

Reheard and modified: 81 N.C. 12.

Cited: Worth v. Worth, 95 N.C. 243.