Open main menu

Page:United States Reports, Volume 2.djvu/250

This page needs to be proofread.


24Q Cases ruled and adjudged in the 17 . 1 E . Ahr. 1 g.pI. 10. 2 Vern. 26. Bend!. Rqt. 281. 3980 ‘ vvyg 1 Ai!. 382. g Bro.Ca. rh Ch. 165: And on thepmnd queltron they cited, 1 Ch. Ca. 271. 1 P. Wm:. 730, 1. 1 Eq. Abr. 142. pl. 7. lhid. 143.pl. 11. 3 Wad¢·:.485. · The counfel for the d¢'¢nd¤nr cited, 2 Bl. Cam. 1 rg. ll 1. s AtL.382. Shy. I 121. Lamm WHI1 54. 1 Cha. Cui 271. On the 2d of April 1786, the Chief jullice delivered the following opinion : M•K¤n1, Chigxfaiylke. In the cafe of an intellaey, the rule - ` of law is clear, t {imple eomraét debts, bonds, mortgages, and fpeeialties of every fort, mult he paid bythe adminillrators " out of the perfonal eftate, this being t e natural fund for debts, tho' the younger children lhould he thereby left deltitute : But T where there is a will, the tellator can fubllitute other funds in the place of the perfonal eftate. What has jah R15/Ion willed in this particular, is the quellion. ‘ The inmusbu of the teltator lhall govern the eonltru&i0n of a will in all cafes, except where the rule of law over-rules the intention, and this is reduceable to four inliances. 1. lhlhere . the devife would make a perpetuity. 2. Where it would put the freehold in abeyanee. 3. Where chattels are limited as in- _ heritanees. And 4. Where a fee is limited on a fee. $:/:8 ¢a_/E: in Chau. 31. Papillon ·v. Va}:. And this intention mult be ccllefted from the whole of the will 01- writing itfelf. 3 Burr. 1541. 1581. 1662. ` 2 Burr. 771. 1106. 1 Vez. 231, and ma- ny other books. • What then was the intention of the teltator as exprelied in his will? The value of the real ellate devifed to the defendant, the quantum of his debts, and the amount of his perfonal ellate _ at his death, would give conliderable light in this matter. Thefe have not been fatisfaétorily afcerrained to us. However, we have been told, that the debts, fpecilic and pecuniary lega- cies, with the charges of adminiliration, will amount to about {3860. and that the perfonal eliate produced only 588 1 3fg. So that if the defendant had paid the £3OQO, there would have been 2 deficiency of { 270, andupwards, and nothing left for the reliduary legatees. The counlel for the defendant inlilt, that he {hall hold the remainder of the real eltate unfold by the executors, exempt from the payment not only of any of the le- gacies, but alfo of the debts, unlefs the perfonal ellate and the produce of the lands fold {hall prove infuflicient for the difeharge of the debts; becaufe, they fay, the {3000 was no Iwgmy to the · i executors ; it was no charge 011 the lands, for they were all de- - vifed to the heir at law ; it was no condition, there being no re- medy in cafe of failure; and it W88 no limitation, there being no dev` e. over. . , ` Th