Hilford v. Way

1 Del. Ch. 342

Opinion

Johns, Sr., Chancellor :

This is a general demurrer. If any part of the case made by the bill entitles the complainant to discovery, or to any relief, it is the general rule that the demurrer must be overruled and the defendant put to answer. 2 Madd. Ch. Pr. 283 : 1 Swanst. R. 304. The hill alleges that a balance of the legacy bequeathed to Lydia, late the wife of the complainant, remains unpaid, and that there is a deficiency of personal estate and of the rents of the real estate, exclusive of the rents not accounted for by Peter Mason, who for a time held the property and whose wife was Martha, the other legatee. Upon these facts it may be necessary to resort to a sale of the real estate, or of some part of it. The intent of the testator, to be collected from the whole will, connected with the circumstance that the personal estate was small, is clear, that the legacies were to be paid, if necessary, out of the real estate and so were a charge thereon. The words, “ the remainder of my estate if any there be,” manifestly import that the residuary devisees were only to take the residue of the estate after debts and legacies should be paid.

Let the demurrer be overruled, and a rule to answer be entered.