Moran, P. J.
The cardinal rule in the construction of a will is to so render it as to carry out the intention of the testator. To that end certain rules or canons of construction have been laid down and are universally assented to and followed by the courts. Among others, there are certain well-established principles of construction, which guide the courts in determining when a general, pecuniary legacy is to be construed to be a charge on real estate devised by the will.
Our Supreme Court in the case of Heslop v. Gatton, 71 Ill. 528, said: “ It seems to he the settled rule, that when a person dies leaving a will, and personal and real property, his debts and pecuniary legacies bequeathed by the will are to be paid from his personal property, and in case of a deficiency, of personal property the legacies must abate, unless he charges his real estate with their pay'ment. The charge upon the real estate may be made "by the testator, either by express directions to that effect contained in the will, or the intention thus to charge it may be implied from the whole will taken together.”
What form of phrase or arrangement of clauses or relation of bequests and devises to each other, when considered in connection with the entire will, and what extrinsic evidence of the circumstances of the testator and the condition of his property may be resorted to, for the purpose of explaining ambiguities, and aiding the inference that it was the intent to charge legacies on real estate, have been the subject of much judicial discussion.
It has been held in numerous cases in England, and though there are some cases contra, may be regarded as the settled rule there, that a gift of all the residue and remainder of real and personal estate in a will that has given pecuniary legacies, charges such legacies on the real estate, as well as on the personal estate included in the residuary clause. Greville v. Brown, 7 H. of L. Cas. 689; Wheeler v. Howell, 3 K. & J. 198; Cole v. Turner, 4 Russ. 376; Hassel v. Hassel, 2 Dick 527; Mirehouse v. Scaife, 2 Mylne & Cr. 695; In re Bellis’s Trusts, L. R., 5 Ch. Div. 504; Bray v. Stevens, L. R., 12 Ch. Div. 162.
This rule is adopted by the U. S. Supreme Court, and has been approved and applied in many of the States. Lewis v. Darling, 16 How. (U. S.) 1; Gallagher’s Appeal, 48 Penn. St. 122; Wilcox v. Wilcox, 13 Allen, 252; Moore v. Beckwith, 14 Ohio St. 135; Cook v. Lanning, 40 N. J. Eq. 339.
In Lupton v. Lupton, 2 Johns. Ch. R., Chancellor Kent held that such general residuary clause, unaided by other words indicating the intention of the testator, was not enough to warrant the charge of a general legacy on real estate. The devise of real estate “ after the payment of debts and legacies ,” or after “ a direction that debts and legacies be first paid," were said in the opinion to be forms of devise that charged the real estate.
This question has been frequently considered in Hew York since the decision of Lupton v. Lupton, but the point discussed has been, what words or form of expression, or what circumstances appearing from the will itself, or by evidence dehors the will, taken in connection with the general residuary gift of realty and personalty, would warrant the implication that the real estate devised in said clause was to be burdened with the payment of general pecuniary legacies, and though in some of the cases there have been intimations that the rule in Lutpon v. Lupton was too strict, in no case has there been a charge of a pecuniary legacy on real estate, where strong indications, from circumstances and significant expressions, supporting the intent to so charge, did not exist, in connection with a blending of personal and real property in a general residuary gift. Reynolds v. Reynolds, 16 N. Y. 257; Bevan v. Cooper, 72 N. Y. 317; Hoyt v. Hoyt, 85 N. Y. 142; Scott v. Stebbins, 91 N. Y. 605; McCorn v. McCorn, 100 N. Y. 511; Matter of City of Rochester, 110 N. Y. 159.
Ho case is to be found, where real estate was charged by implication, where there was no general gift of real and personal property in the residuary clause.
In the will now under consideration there is no such general, residuary clause blending in mass personal and real property. The gift made by the fourth clause is not even of the rest and residue of his property, but is a device of “ the rest, residue and remainder of all my real estate without any exception.”
The devisees named in the clause are to take all the real estate remaining after previous devises are satisfied. It is the prior devises of real estate that are to be subtracted in order to ascertain the gift to such residuary devisees, and prior general bequests are to be in no manner considered in ascertaining the property which passes under such a devise.
If the testator had in this clause of the will designated the real estate devised,.by a particular, legal description, as by lots and blocks, or by particular metes and bounds, it would occur to no one that real estate so given was to be charged with a prior general pecuniary bequest. If there is a deficiency of assets to pay all legacies, the general legacies must abate before anything will be deducted from the specific. Beach on Wills, Sec. 140 et seg.; 2 Williams on Execution, 1359-60.
But this devise is specific. The words “ rest, residue and remainder ” of my real estate are but a description of the property devised. The general description was more convenient and shorter than to write out separate descriptions of each tract.
“ It seems to be universally conceded that a devise of real estate is always to be regarded as specific, whether the estate is specifically described, or only in general terms, and by reference to other facts and documents.” 2 Redf. on Wills, p. 144; Henderson v. Green, 34 Iowa, 437.
It follows that if there are no assets from which to pay the bequest to appellee, it must abate.
It can no more be made a charge on the real estate devised in the fourth clause of the will, than upon that given in the third or in the first clause of the will. We find no language in this will from which an intention can be inferred that this bequest should be a charge on real estate.
There is, to be sure, the circumstance that the deficiency of personal property appears on the face of the will, and was created by the testator bequeathing all of it to Mary Corrigan, his widow, in the first clause of the will. It may be, as was said in Hoyt v. Hoyt, 85 N. Y. 147, that it is “ to be assumed that no man in making a final disposition of his estate will make a legacy, save with the honest, sober-minded intention that it shall be paid,” but it is also to be assumed that the testator knew the law, and was aware that personal property was the primary fund for the payment of debts and pecuniary legacies, and where he made no express charge, there certainly is better ground for the inference that he intended such a legacy to be paid from personal property generally bequeathed, than from real estate specifically devised. The legacies to the widow in the first clause of the will are to be taken in lieu of dower. Sec.
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Moran, P. J.
The cardinal rule in the construction of a will is to so render it as to carry out the intention of the testator. To that end certain rules or canons of construction have been laid down and are universally assented to and followed by the courts. Among others, there are certain well-established principles of construction, which guide the courts in determining when a general, pecuniary legacy is to be construed to be a charge on real estate devised by the will.
Our Supreme Court in the case of Heslop v. Gatton, 71 Ill. 528, said: “ It seems to he the settled rule, that when a person dies leaving a will, and personal and real property, his debts and pecuniary legacies bequeathed by the will are to be paid from his personal property, and in case of a deficiency, of personal property the legacies must abate, unless he charges his real estate with their pay'ment. The charge upon the real estate may be made "by the testator, either by express directions to that effect contained in the will, or the intention thus to charge it may be implied from the whole will taken together.”
What form of phrase or arrangement of clauses or relation of bequests and devises to each other, when considered in connection with the entire will, and what extrinsic evidence of the circumstances of the testator and the condition of his property may be resorted to, for the purpose of explaining ambiguities, and aiding the inference that it was the intent to charge legacies on real estate, have been the subject of much judicial discussion.
It has been held in numerous cases in England, and though there are some cases contra, may be regarded as the settled rule there, that a gift of all the residue and remainder of real and personal estate in a will that has given pecuniary legacies, charges such legacies on the real estate, as well as on the personal estate included in the residuary clause. Greville v. Brown, 7 H. of L. Cas. 689; Wheeler v. Howell, 3 K. & J. 198; Cole v. Turner, 4 Russ. 376; Hassel v. Hassel, 2 Dick 527; Mirehouse v. Scaife, 2 Mylne & Cr. 695; In re Bellis’s Trusts, L. R., 5 Ch. Div. 504; Bray v. Stevens, L. R., 12 Ch. Div. 162.
This rule is adopted by the U. S. Supreme Court, and has been approved and applied in many of the States. Lewis v. Darling, 16 How. (U. S.) 1; Gallagher’s Appeal, 48 Penn. St. 122; Wilcox v. Wilcox, 13 Allen, 252; Moore v. Beckwith, 14 Ohio St. 135; Cook v. Lanning, 40 N. J. Eq. 339.
In Lupton v. Lupton, 2 Johns. Ch. R., Chancellor Kent held that such general residuary clause, unaided by other words indicating the intention of the testator, was not enough to warrant the charge of a general legacy on real estate. The devise of real estate “ after the payment of debts and legacies ,” or after “ a direction that debts and legacies be first paid," were said in the opinion to be forms of devise that charged the real estate.
This question has been frequently considered in Hew York since the decision of Lupton v. Lupton, but the point discussed has been, what words or form of expression, or what circumstances appearing from the will itself, or by evidence dehors the will, taken in connection with the general residuary gift of realty and personalty, would warrant the implication that the real estate devised in said clause was to be burdened with the payment of general pecuniary legacies, and though in some of the cases there have been intimations that the rule in Lutpon v. Lupton was too strict, in no case has there been a charge of a pecuniary legacy on real estate, where strong indications, from circumstances and significant expressions, supporting the intent to so charge, did not exist, in connection with a blending of personal and real property in a general residuary gift. Reynolds v. Reynolds, 16 N. Y. 257; Bevan v. Cooper, 72 N. Y. 317; Hoyt v. Hoyt, 85 N. Y. 142; Scott v. Stebbins, 91 N. Y. 605; McCorn v. McCorn, 100 N. Y. 511; Matter of City of Rochester, 110 N. Y. 159.
Ho case is to be found, where real estate was charged by implication, where there was no general gift of real and personal property in the residuary clause.
In the will now under consideration there is no such general, residuary clause blending in mass personal and real property. The gift made by the fourth clause is not even of the rest and residue of his property, but is a device of “ the rest, residue and remainder of all my real estate without any exception.”
The devisees named in the clause are to take all the real estate remaining after previous devises are satisfied. It is the prior devises of real estate that are to be subtracted in order to ascertain the gift to such residuary devisees, and prior general bequests are to be in no manner considered in ascertaining the property which passes under such a devise.
If the testator had in this clause of the will designated the real estate devised,.by a particular, legal description, as by lots and blocks, or by particular metes and bounds, it would occur to no one that real estate so given was to be charged with a prior general pecuniary bequest. If there is a deficiency of assets to pay all legacies, the general legacies must abate before anything will be deducted from the specific. Beach on Wills, Sec. 140 et seg.; 2 Williams on Execution, 1359-60.
But this devise is specific. The words “ rest, residue and remainder ” of my real estate are but a description of the property devised. The general description was more convenient and shorter than to write out separate descriptions of each tract.
“ It seems to be universally conceded that a devise of real estate is always to be regarded as specific, whether the estate is specifically described, or only in general terms, and by reference to other facts and documents.” 2 Redf. on Wills, p. 144; Henderson v. Green, 34 Iowa, 437.
It follows that if there are no assets from which to pay the bequest to appellee, it must abate.
It can no more be made a charge on the real estate devised in the fourth clause of the will, than upon that given in the third or in the first clause of the will. We find no language in this will from which an intention can be inferred that this bequest should be a charge on real estate.
There is, to be sure, the circumstance that the deficiency of personal property appears on the face of the will, and was created by the testator bequeathing all of it to Mary Corrigan, his widow, in the first clause of the will. It may be, as was said in Hoyt v. Hoyt, 85 N. Y. 147, that it is “ to be assumed that no man in making a final disposition of his estate will make a legacy, save with the honest, sober-minded intention that it shall be paid,” but it is also to be assumed that the testator knew the law, and was aware that personal property was the primary fund for the payment of debts and pecuniary legacies, and where he made no express charge, there certainly is better ground for the inference that he intended such a legacy to be paid from personal property generally bequeathed, than from real estate specifically devised. The legacies to the widow in the first clause of the will are to be taken in lieu of dower. Sec. 10 of the Statute on Dower provides: “ Any devise of land or estate therein, or any other provision made by the will of a deceased husband or wife, for a surviving wife or husband, shall, unless otherwise expressed in the will, bar the dower of such survivor in the lands of the deceased unless such survivor shall elect to, and does renounce the benefit of such devise or other provision, in which case he or she shall be entitled to dower in the lands and to one-third of the personal estate after the payment of debts.”
Under such a statute the widow is a purchaser for value in accepting the provisions of the will, and legacies to her which operate to bar her dower, would not abate in favor of legacies to pure beneficiaries of the testator’s bounty. Blatchford v. Newberry, 99 Ill. 11; Borden v. Jenks, 140 Mass. 562.
Whether the fact that the widow in this case was made the executrix, would affect her right to hold the personal property given to her against the claim of a general pecuniary legatee, is a question that is not before us on this appeal, has not been argued, and on which we express no opinion.
If, however, the legal construction of the whole will should leave nothing whatever to be applied in payment of appellee’s bequest, and show the act of the testator in writing it in the will to be but a “making the word of promise to the ear, to break it to the hope,” we should still be bound by the conclusion we have above stated.
“If (as was said in 30 Hun, 173), because a man makes a legacy he intends it to be paid, then all legacies would be charged on real estate if the personal estate fell short.”
The argument that where the testator creates the deficiency of personal estate on the face of the will it shows an intention to charge real estate, while not without force, is not enough.
That condition existed in Heslop v. Gatton, supra. By the third clause of the will there considered, the testatrix disposed of all her personal property except her horse, buggy and harness. The pecuniary bequest was $1,000. The Supreme Court said there was nothing from which an intention to charge the real estate with the payment of said bequest could be fairly inferred.
The conclusion must be, therefore, that the court erred in charging the payment of said legacy to appellee on the real estate devised to appellants, and the decree must be reversed and the case remanded with directions to dismiss the bill as to said appellants.
Decree reversed and remanded with directions.