Gallagher's Appeal , 48 Pa. 121 ( 1864 )

The opinion of the court was delivered by

Woodward, C. J.

— When does a testator make the pecuniary legacies of his will a charge upon the land he devises ?

It would be easy to answer, when he manifests an intention to do so by express language. But it often happens that there is no express charge, and language which the testator directed to other objects has to be so construed as to get at his presumed intention upon this particular point. The most important of the English cases under this head will be found collected in 2 Jarm. on Wills 378, et seq.; without discussing our own cases, I content myself with referring to so many of them as will exhibit the grounds and reasons for conclusions which, if not actually hostile, do not agree very well together: Lobach’s Case, 6 Watts 169; Brandt’s Appeal, 8 Id. 198; Ripple v. Ripple, 1 Rawle 386; Devitt v. Eldred, 4 W. & S. 422; Montgomery v. McElroy, 3 W. & S. 370; Miltenberger v. Schlegel, 7 Barr 241; Hackadorn’s Appeal, 1 Jones 88; McGlaughlin v. McGlaughlin, 12 Harris 22; Riley’s Appeal, 10 Casey 292; Clery’s Appeal, 10 Id. 54; Field’s Appeal, 12 Id. 11; Wright’s Appeal, 2 Jones 257.

There is one principle of decision fairly deducible from the authorities, which is enough to decide the present case: that is, that where a testator, after giving legacies, makes no specific devise of his real estate, but blending it with the personalty in the residuary clause, gives it all to his residuary devisee, whom he makes sole executor, he thereby charges the realty with the payment of the legacies. The residue in such a case can mean nothing but what remains after the legacies have been taken out. If there be special devises of real estate, the word residue may refer to them; hut where the only antecedent bequests are pecuniary legacies, this word implies that they are to he deducted to make the residue.

The personalty is the primary fund for the payment of both debts and legacies, unless relieved by express charge 'upon the realty; but when the real estate is blended w'ith the personal, the land is charged with the legacies: McLanahan v. Wyant, 1 Pa. R. 112, and 6 Binn. 396.

Now in this case it appears from the scrap of the will which is furnished to us, that Gallagher gave his daughter Jane a legacy of $200, to be paid by her brother Joseph within one year after the testator’s death, and the residue of his estate, real and personal, with the exception of a few small bequests, he gave to his son Joseph, whom he appointed executor. It is an immaterial circumstance that one-half of the two hundred dollar legacy was payable in “horses, cattle, sheep, or other stock,” for these were to be taken at “ fair prices,” and were not specific bequests, hut only a cheaper currency in which to discharge half a legacy strictly pecuniary. Nor does the other provision, that Jane might keep a cow and six sheep, help to sustain the ruling below, for these were expressly charged upon the farm as long as Jane should remain with Joseph.

Essentially it is the case of a pecuniary legacy to one, with a residuary devise of both realty and personalty to another; and this establishes the charge, especially as against a judgment-creditor whose lien did not attach until the personal estate was gone, and the realty was the only fund left for the satisfaction of the legacy.

The decree is reversed, and distribution is ordered to he made in accordance with the auditor’s report, the costs to be first taken out of the fund.