Cunningham, Exrs. v. Cunningham

Baldwin, J.

The testator left four children and made them his residuary legatees and devisees in equal shares. The paragraph next preceding this provision gave them in equal shares No. 97 and No. 99 Windsor street, subject to a life use of part of the premises by the widow. This specific devise must be presumed to have been made for the purpose of securing some result which the general residuary clause would not accomplish. That sent the remainder in question to the four children, share and share alike: this also gave it to them in the same proportions, and must therefore have been designed to give it subject to some further burden.

A. comparison of the will with the testator’s estate, shows what this burden was. He left pecuniary legacies to the amount of $6,500, and the personal property applicable to their payment was less than $3,000. If the balance necessary to satisfy them, which slightly exceeded $3,500, were charged upon No. 112 and No. 114 Windsor street alone, the value of which was only $3,500, it could not be raised. The testator made his will only three days before his death, and it may fairly be assumed that he knew what he had to leave, and the value of each parcel of his real estate. He must also have intended to give his sons a substantial benefit in making them the devisees of No. 112 and No. 114. The only reasonable construction of his language is that he intended the charge of the legacies to attach to both parcels. The whole ambiguity arises from his having thrown the devise of No. 97 and No. 99 into the form of a separate article. To give the will its proper operation, the word “ Seventh ” must be disregarded, and the sixth and seventh paragraphs read as one. This makes the legacies a charge on all his real estate, and on all alike; that is on each parcel in proportion to its value.

Any sale of the interest of the estate in No. 97 and No. 99 must be subject to the life interest of the widow in the tenement, as the provisions in her favor were manifestly intended to be in lieu of dower.

There is a technical defect of parties, in that while the plaintiffs sue simply as executors, they have not made themselves defendants in their individual capacity. As, however, they are the domini litis and control the cause, we do not think the irregularity such as should preclude us from giving the advice requested.

The Superior Court is advised to allow the plaintiffs to amend their writ by describing themselves as suing both individually and as executors, or in default of such an amendment, to issue an order to cite them in as parties defendant in their individual capacity; and that, by the terms of the will, so much of the legacies as cannot he satisfied out of the personal estate is an equal charge upon all the real estate; that the equities of 'redemption in both parcels can be sold to meet the charge (subject to the life interest of the widow in No. 97 and No. 99); and that, if sold, so much of the proceeds of eacli parcel should be applied to raise the sum required, as corresponds with the proportion between the total amount needed to satisfy all the legacies, and the total proceeds of both parcels.

No costs in this court will be taxed in favor of either party.

In this opinion the other judges concurred.