Page:Federal Reporter, 1st Series, Volume 8.djvu/236

■223 FEPEBAL BBPORTEB. �Street, in Bellville, which was subsequently run ofi into lots by the executor, seven of which he sold to one Francis Haggerty, oa the tweuty-fourth of March, 1874, for the aum of $3,631.50. �With this knowledge of the condition of the eatate, it does net seem ■that the construction of the will ought to occasion much serious con- troversy. It is the duty of the court to ascertain from the whole instrument the intention of the testator, and to give effect, so far as practicable, to all the provisions of the will. When these confiict, they must, if possible, be so construed that all may stand. It is obvions that the housekeeper, Sarah Jane McClelland, was the spe- cial object of the testator's bounty. It was clearly his design to make provision out of the estate for her comfortable support. To this end, he gave to her, absolutely, his dwelling-house, with all the furniture, for her home. He ordered the rents and profits of other designated real estate to be used during her life for the payment of taxes, and to keep the house in proper repair. He further directed the payment of $15 monthly for the current expenses of her living, and provided that the money for this purpose should be paid from or out of his undivided estate. To what, then, is she entitled under the will? �(1) To all the furniture and other personal property, and to an estate in f ee-simple in the brick house, and the lot or garden on which it stands, 90 feet in width and 126 f eet in depth ; (2) to a life estate in the two tenement houses known as the "shop," and a lot 60 feet in width and 75 J feet in depth; (3) to the monthly payment of $15 during her life, to be derived from the sale of real estate not otherwise specifically disposed of. �Where there is a complete disposition of the personal property by the testator, and there is no possibility of the payment of a legacy or money ordered to be raised for a specifie purpose except from the real estate, it is the duty of the courts to presume that he meant to charge the land for such payment. See Goddard v. Pomeroy, 13 Bart. 546; 1 How. 1. �Applying this settled rule of construction to the present case, the $1,000 which was ordered to be used from the estate for fencing, grading, and placing a head-stone on the burying lot of the testator, should be paid by the executor from the proceeds of the sale of the land authorized to be sold. �What, then, is the duty of the executor ? �(1) To surrender to Sarah Jane McClelland the furniture specifically be- queathed to her, and also the absolute possession and control of the brick house, with the lot, as descr^bed in the will. (2) To allow to her the reuts and profits of the house and building known as the "shop," with the lot, ��� �