Tennille v. Phelps

McCay, Judge.

The real question in this case is, what is the meaning of Mrs. Tennille’s will, as respects the rights of the legatees filing the bill? Were the legacies given to them money legacies? Were the directions to pay them out of the profits of the plantation only directory and demonstrative ? Or were they, in the nature of specific legacies, not payable at all if the fund provided should fail? The Court below held the former. Was that error?

In the construction of wills, the great thing to be sought for is the intention of the testator. The whole will is to be looked to, and all its parts to be harmonized, if possible. The surroundings of the testator are to be considered, the objects of his bounty, his family relations, the nature and extent of his estate, etc. If there be any doubt arising from the mere words of any clause, all the circumstances alluded to may be considered in resolving it. These are not only principles well settled by the authorities, but are the positive enactments of our own Code: Irwin’s Code, secs. 2420, 2421. As a general rule, it is true that a gift of money, to be paid from a specified fund is, nevertheless, a general legacy, and a failure of the fund does not destroy the legacy: Code, see. 2422. But it is unquestionably true that a testator may so charge a money legacy upon a particular fund as to make the legacy follow the fate of the fund. To say the contrary, would be to hold that a testator has not a right to make such a disposition of his property as he pleases; that if he has a horse, he may give it to A, and the legacy fails if the horse die before the testator; but if he have a particular fund and give that, he cannot so give it as that if the fund fail, the legacy also fails.

All that the rule means is, that where a general money legacy is given, the testator is not to be presumed to have intended to make it dependent upon the existence of a fund merely because he has indicated that it is to be paid out of that fund. On the contrary, if the will gives a money legacy, and a particular fund is charged with the payment of it, the presumption is that this only indicates an intention to furnish an additional security for its payment; since, if the fund charged is sufficient, the legacy shall not abate, though the condition of the estate is such that other general legacies are compelled to abate: 3 Vesey, Jr., 640; 5 Ibid., 206. But, to make out a case of this kind, the will must show that the testator intended a general money legacy. Nor does it at all follow because a legacy is expressed in dollars that it is a general legacy. As if a legacy be of $1,000 00, deposited in a certain chest, bag or purse, or in the hands of A: 1 Atkins, 508; 1 P. W., 540; Pulsford vs. Hunter, 3 Brown’s Chan. Cases, 416.

The whole inquiry is simply whether the testator intended to give a sum of money generally, referring to the fund merely as a mode of payment, of whether he intended to give either the whole or a part of a certain specific sum or fund.

In Page vs. Leapring, 18 Vesey, 463, the testator directed certain real estates to be sold for not less than ¿£10,000. He then’ directed that out of the money arising from the sale, ¿63,000 should be expended in buying a benefice for his godson, that ¿64,000 should be expended in buying certain lands for his nephew. He also gave out of this fund ¿6500 to E., and three other legacies of ¿6100 to three other persons, and he bequeathed the remainder of the fund to F. and G. The land brought only ¿67,000, and Sir W. Grant held the legacies dependent on the fund and not a charge on the whole estate : 18 Vesey, 463. So in Mayott vs. Mayott, 3 Brown’s Chancery Cases, 125.

The testator, being a tenant from year to year of a certain farm, directed B. to carry on the farm 'and invest the net proceeds each year in the government funds, and when E., his nephew, became twenty-one, ¿61,500 of said proceeds and of the stock and crop, were given to E. The landlord who had given the lease, refused to permit B. to carry on the farm, and the Court held the legacy failed with the scheme.

These cases go upon the plain common-sense rule i that if the testator intend, from the whole will, to give to the legatee a sum of money, it is a general legacy, even though he do point out a specific fund out of which it shall be paid, since it is obvious that he may point out this fund, only because he wishes to add an additional security for the payment, a security upon which the legatee has a specific lien if the general assets fail and general legacies are compelled to abate. But if the testator, by his whole will, show that his intent is to .give the money legacy only on condition that the fund will produce it, or if the intent be clear that he intends to give the fund, or a part of it, and that his mind is on the specific thing, and his intent is to dispose of that, the legacy is specific.

"With these general principles to guide us, let us now consider the will of Mrs. Tennille. She was an old lady and her husband was an old man. They had but one living child. Tier property was almost wholly in land and slaves. The bulk of it Avas a plantation, with stock and slaves upon it, in Quitman county. She directs her house in Columbus to be sold to pay her debts. She then directs that her plantation in Quitman shall be kept up and the slaves worked thereon by her executors, “for the purposes hereinafter mentioned.” After this, she gives the money legacies to the plaintiffs, and adds, immediately, “it is my desire, and I direct the foregoing bequests in this item mentioned shall be paid out of the profits and income of my plantation, without interest, whenever my executors shall see proper, and can Conveniently spare the same, after paying all expenses necessarily arising from a prudent management of the plantation.” ■

In the next item, she gives a legacy of $2,000 00 to another legatee, without qualification and without any direction as to how it shall be paid. She next disposes of certain lands and personal estate in Alabama, giving it specifically to the legatees. She then gives all the remainder of her estate, (which is the plantation and slaves directed before to be kept together and worked,) to her son, directing that her husband, who, with his brother, she appoints her executors, shall receive the annual profits during his life, in trust, without accountability, for her son; and she directs that he shall preserve the corpus for the.son.

This is the scheme for the disposition of her property. She disposes of all of it specifically except the legacy to Tennille Patterson. The plantation and slaves in Quitman she designs for her son. But the son is but sixteen years old, and she wishes to provide for her husband and the present plaintiffs out of this, without affecting the corpus of it, and how does she do it? She first directs that the plantation shall be kept up, the slaves and stock worked upon it. She then, after she has provided a yearly fund for the purposes indicated, gives them legacies, and directs them to be paid out of this fund. She contemplates that it may take some time for the fund to furnish the money to pay; she remembei’s that there will be expenses and uncertainties affecting the profits made on the plantation, and she directs that these legacies, if delayed in their payment, by these expenses and uncertainties, shall not draw interest. Can any one for a moment fail to think that if the scheme could have been carried out — if the negroes and stock were now at work under the direction of the executors, these legacies would have to await the accumulation of enough to pay them out of the profits, and get no interest in the meantime? If, for instance, there was only a yearly profit of $1,000 00, could they demand in any year more than that? Is it not plain that it was the intention of the testatrix that these legatees were not to be permitted to demand the sale of any portion of the corpus of her estate? If these are general legacies, the legatees would have a right to insist upon their payment as soon as there were funds in hand, after the payment of the debts, to pay them. Is it not clear that this was not the intention of the testatrix?

Does not the will show very clearly that she intended to make these legacies dependent upon the ability of this fund to discharge them? In terms she makes the time of their payment depend upon this. She contemplates it as entirely within the range of probabilities, that the profits of the plantation will not pay these legacies at once, and she directs that they shall not bear interest if they have to be for this reason postponed.

Taking all of this will together, we are of opinion that the testatrix intended this plantation and negroes to go to her son bodily, and that her legacies to the persons mentioned in this item were intended to be specific legacies and dependent upon the success of her scheme of keeping up her plantation and working the negroes thereon.

This scheme has failed. It is impossible to carry it out. We think the legacies fell with it. We think it was her intent that her son should have all of her estate, not specifically bequeathed away, except the legacy to Tennille Patterson, though she intended that if the income arising from the working of the slaves on the plantation should be sufficient to pay these legacies in the fifth item, they should be so paid, but not otherwise. We think this was the clear intent of the testatrix, and that this intent is not only such as subsequent events have shown to be material, but that such intent is plainly made known by the words of her will.

Judgment reversed.