Lacey v. Birdsall

23 Ohio C.C. Dec. 460, 15 Ohio C.C. (n.s.) 60

• Court: Portage Circuit Court
• Decided: March 15, 1912
• Status: Published

Opinion

METCALFE, J.

The only question in this case is whether by the terms of the will of Abigal Birdsall the personalty belonging to her estate is exonerated from the payment of a legacy of $1,000 given to the plaintiff, Sarah Jane Lacey. Item three of said will is as follows:

“I give, devise and bequeath to my daughter, Sarah Jane Lacey, $1,000 and I direct that the, same shall be paid to her within eighteen months after my decease.”

There is no specific direction here as to what fund shall be used in paying this legacy. Without anything further to throw light on the intention of the testator the personalty would be primarily liable for its payment. But the will must be construed m the light of all its provisions. Item four is as follows:

' ‘ I give, devise, and bequeath to my son, George H. Birdsall, my farm located in Streetsboro township, Portage county, Ohio, upon consideration that he pay to my daughter Sarah Jane Lacey within eighteen months from my decease the $1,000 which I have bequeathed to her in item three and which sum until paid 1 hereby make a charge upon said farm.”

This provision of the will makes' it clear that the intention of the testator was that George should pay the legacy to Mrs Lacey. He is to receive the farm ‘ ‘ upon consideration, that he pay” the $1,000 legacy. This is clearly a personal requirement of George, and makes him personally responsible for its payment, if he accepts the bequest of the farm, and in order to make the payment secure it is made a charge upon the farm.

Item two also throws some light on the question: “I give, devise, and bequeath to Isadore Birdsall $300 and direct that the same be paid out of my estate within, eighteen months after my decease.” The specific direction in this item requiring the payment of the legacy to Isadore out of her estate is entirely consistent with the direction that the legacy to Sarah Jane be paid by George.

We, therefore, hold that the intention of the testator being clear to make the payment of the legacy to Sarah Jane a personal requirement of George that that intention must prevail.

Counsel for the defense have cited many English and some American eases which seem to hold to the doctrine that a specific direction in a will to one of the legatees to pay a legacy to another does not exonerate the personal property. But we think this is contrary to the established doctrine in Ohio that the intention of the testator must be gathered from the will itself, and when ascertained must govern, .even though it is contrary to a technical rule of law. To hold otherwise would, in our judgment, be a departure from well grounded doctrines which prevail in this state.

Judgment affirmed.

Norris and Pollock, JJ., concur.