The matter to be ascertained in this case is the intention of the testator as manifested on the face of his will, by which, after making provision for his widow, and some inconsiderable legacies, he devises and bequeaths the bulk of his property to be distributed among his brothers and sisters in equal shares, and then, as incidental to his general scheme of distribution, directs 'that any and all notes, bills, accounts, agreements, or other evidences of indebtedness against any of my said brothers and sisters held by me at the time of my decease be canceled by my said executors, and delivered up to the maker or makers thereof, without payment of the same, or any part thereof,' except two notes held by the testator against John C. Waterman alone, amounting to $12,600, secured by trust-deeds upon lands in Missouri, which he directs to be collected and divided among his brothers and sisters.
The manifest object of the clause is to benefit brothers and sisters of the testator, and them only. The testator clearly expresses his intention that (with the exception specified) any sums of money which may be owing by any of them to him at the time of his death shall not be collected, or be treated as part of his estate for the purpose of division among them, but that all notes, bills, accounts, agreements, or other evidences of such debts shall be canceled and delivered up. The terms of the exception may affirm or imply an intention to include in the general provision debts of a brother or of a sister for which he holds security; but they have no tendency to show that sums of money owing from any other person are intended to be released or given to such person, or to be excluded from the estate to be distributed among the brothers and sisters.
Taking the words of the clause in connection with the general scheme of the will, it is impossible to attribute to the testator an intention to include joint and several notes made to him between the date of the will and his death, by a partnership of which one brother is a member, to obtain money to carry on the business of the partnership, and secured by an agreement to convey real estate. To hold that the brother alone was discharged from liability, while his partner remained liable to the estate, upon such notes, would be inconsistent with the positive direction that all notes coming within the scope of the clause shall be canceled by the executors, 'and delivered up to the maker or makers thereof, without payment of the same, or any part thereof.' To hold that there was a legacy of the whole of such notes to the brother, with a right to compel payment of a share thereof by his partner, would be equally inconsistent with that direction, and would, moreover, give to the brother alone, instead of to him together with the other brothers and sisters, the share of the debt for which the stranger was ultimately liable. To hold that such notes should be canceled and extinguished as against both makers, the brother and his partner, would contravene the testator's manifest purpose to benefit brothers and sisters only; for to release the stranger from his share of the debt would not only confer no benefit upon the brother, but would injure him in common with the other brothers and sisters by diminishing the estate to be divided among them.
The case is quite different from a legacy to a particular person of 'his bond' for a sum named, which must, of course, pass a joint bond, when there is no other, as in the cases, cited by the appellant, of Maitland v. Adair, 3 Ves. 231, and Izon v. Butler, 2 Price, 34.
The decisions upon contracts to secure debts of a particular person are, to say the least, not inconsistent with this conclusion. A contract of guaranty or suretyship, by which one person undertakes to be responsible for debts to be contracted by another, does not ordinarily include debts contracted by the latter jointly with a third person, as partners or otherwise. Bellairs v. Ebsworth, 3 Camp. 52; Assurance Co. v. Bold, 6 Q. B. 514; Montefiore v. Lloyd, 15 C. B. (N. S.) 203; Leathley v. Spyer, L. R. 5 C. P. 595, 602; Palmer v. Bagg, 56 N. Y. 523; Sewing-Machine Co. v. Delano, 113 Mass. 194, 197; Sewing-Machine Co. v. Hines, 61 Mich. 423, 28 N. W. Rep. 157. Even when a man gives security for debts which he may himself contract, opinions have differed upon the question whether it does or does not include debts contracted by him as a member of a partnership. Ex parte Freen, 2 Glyn & J. 246; Chuck v. Freen, Moody & M. 259; Ex parte McKenna, 3 De Gex, F. & J. 629; Bank v. Thompson, 121 N. Y. 280, 24 N. E. Rep. 473; Hallowell v. Bank, 154 Mass. 359, 28 N. E. Rep. 281.
For these reasons we concur in the opinion delivered by the chief justice in the circuit court that the seventh clause of the will, whether operating by way of release or by way of legacy, cannot be construed as including the joint and several notes of Waterman & Porter, or any part thereof.
Decree affirmed.
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