Getchell v. Rust

Citations

• 8 Del. Ch. 284

Syllabus

<p>A testator bequeathed to'his wife a house and lot “also $300 in good and lawful money of the United States of America,” and certain other personal chattels, “provided she stands to or accepts my will. If not nothing.” To each of his sons was devised a tract of land on which they resided respectively, and to his grandson, the family homestead. To one son and his daughters were given pecuniary legacies. The conclusion of the will immediately preceding the in testimonium clause, was, “And I do hereby make and ordain T. and D. executors of this my last will and testament, all of said legacies to be paid out of my estate;’’ the word “executors” being written across the line after the names were written, and the words in italics interlined, in the original will. There was no residuary clause. Upon a bill to charge the legacy to the widow upon the land; held, that the intention of the testator to charge the land with the payment of the wife’s legacy did not appear from the will either by express words or by fair and reasonable implication.</p> <p>Inasmuch as the personal estate is the natural and primary fund for the payment of debts and legacies, the law conclusively presumes that a legacy is to be paid only out of the personalty, and if that be insufficient, the legacy is lost pro tanto, unless a contrary intention appears upon the face of the will either by express words or by fair and reasonable implication.</p> <p>Upon the proposal to charge the real estate with the payment of a pecuniary legacy, all the presumptions are against it and must be met and overcome; the burden rests upon the legatee seeking such relief to establish clearly his case and to find evidence to support it within the four corners of the will, considering all of the circumstances under which it was made.</p> <p>The existence of a residuary clause is considered in this Court to be demonstrative evidence of an intention to charge a legacy upon the land.</p>