Myers's Appeal

The opinion of the court was delivered, by

Woodward, C. J.

— Both reason and authority sustain the argument of the appellant’s counsel, that the words of a testator, “I will and bequeath unto my beloved wife Ann, as much of my personal property as she chooses to retain, to be set apart for her without any appraisement being had of the same,” are sufficient to pass to her the whole personal estate, choses in action included. Sufficient, be it understood, if the words stood alone in the will, and were to be taken in an absolute and unqualified sense. But the difficulty which the argument for the appellant encounters is, that these words in Baltzer Snyder’s will are not to be taken independently and absolutely, but connectedly with other words of the context, and consistently with the plan or scheme of the whole will.

The testator died without issue leaving a widow (the appellant) and brothers and sisters, and children of deceased brothers and sisters. He left a personal estate - - - - $6601.60 Of which bonds and notes amounted to - - - 5148.36

The residue was household goods and farm stock and implements. The real estate amounted to - - - - - 8420.00

He first directs that his debts and funeral expenses be paid out of the first moneys that shall come into the hands of his executors, and then he gives seven legacies, of $250 each, to married sisters and their husbands, and to brothers-in-law by a former marriage, three of the legatees being indebted to him in sums about equal to the legacies given to them respectively. He next ordered his executors to sell his real estate as soon as convenient after his decease. Then follows the clause quoted above, giving his wife as much personal property as she chooses to retain, with direction that she remain on the real estate, and receive $200 yearly until it be sold. Then follows a bequest to her of $4000, to be paid out of the proceeds of the real estate when sold; and the will concludes with a residuary clause in favor of his brothers and sisters and their children, who are specifically named.

In his account of the personal estate the administrator claimed credits for the payment of six of the $250 legacies, and they were allowed to him, and this is the matter complained of by the widow. She objects to any of the personal estate going to legatees, because it all belongs to her.

Taking into view all parts of the will, and especially the yearly payment of $200 to the widow, we think it is not more manifest that the testator meant that his debts and funeral expenses should be paid out of his personal estate, than that these legacies should be. If she was to take the whole personal estate, how was her annuity to be paid ? Like the debts, the legacies and this annuity were chargeable upon personal estate as the primary fund, and the “personal property,” of which the widow was to retain as much as she chose, meant that which should remain of the personalty after she took her $300 allowed by law, and after the debts and legacies were paid. She might as well set up that one clause of the will against payment of debts and funeral expenses, as against payment of the legacies. The whole will must have effect if possible. And there is not the slightest difficulty in giving harmonious action to every part, except we elevate the clause relied on by the widow out of its place, and shut our eyes on all the rest.

In Garman v. Garman, 3 Casey 116, and in McLaughlin v. McLaughlin, 12 Harris 22, we refused to construe the words “personal property” as including choses in action, hut this was on the ground that the will directed sales of the personalty, and that choses in action were not ordinarily proper subjects of administrator’s sales. We have no such ground in this case, and whilst we concede that the bequest to the widow was, in its terms, large enough to carry the whole personal estate, we restrain the generality of the terms, according to the evident intent as deduced from the whole instrument.

The decree is affirmed.