Kelly against Kelly, 6 Watts 156

The opinion of the Court was delivered by Kennedy, J. In May 1833, when the testator made his will, he had one son and three daughters, making in all, four children. It would seem, from the tenor of the will, that it was his intention to give his three daughters equal portions of his estate. The terms of the will indicate this very clearly, and the devises and bequests therein made to them appear to be in exact accordance with such intention.

A short time, however, before the making of his will, in the preceding month, the testator advanced to his son-in-law, Doctor Hugh M’Donald, the husband of his daughter Catharine, 1400 dollars, and took from him his single bill, promising to pay the same to the testator; which is therein stated to be a part of the legacy of the said Hugh at the death of the testator; and that it is to draw no interest.

By the will the testator gave to his son, the plaintiff below, his mansion plantation, containing about nine hundred acres, with the appurtenances, which was probably a more valuable portion of his real estate than he gave to either of his daughters: but in respect to the personal estate, he seems to have wished to place them all on an equal footing with each other ; for he first gives to each of them certain specific legacies out of it, of unequal value; giving to some less and to others more, because he had previously advanced less to the latter than to the former; and by this means he intended to make them all participate equally in what he considered was only a part of his personal estate: he then, in so many words, directs that the residue thereof, consisting of “ cash and outstanding debts,” shall be equally divided among his four children, naming them.

No specific notice is taken in the will of the 1400 dollars, previously advanced to his son-in-law, Doctor M’Donald; but from the design of the testator, as evidenced by his will, to make his children, and especially his daughters, equal participants in his personal estate, it would seem not only fair, but necessary, in order to effectuate this his design, to consider the 1400 dollars as intended to be embraced by him in the residue of his personal estate; which he describes as consisting of “cash and outstanding debts:” and this will also accord with the declaration contained in the obligation or bill given for the payment of it, which states it to be, in part of the Doctor’s legacy, which must, as I apprehend, have been intended rather to allude to a legacy that was designed for his wife, and not for himself unconnected with her.

If it be not now considered as part of the residue of the personal estate, but as an advancement to the Doctor, for and on account of his wife, over and above what is mentioned in the will, then the clear intention of the testator, throughout the whole scope and tenor of it, which was equality of donation, would thereby be defeated: but the codicil, even if his intention in regard to this were in the least doubtful, renders it perfectly manifest and certain; because, after giving to the two children of his daughter Catharine, she being then dead, what he had intended for and given by his will to their mother, he mentions the obligation of their'father for the 1400 dollars, and declares in positive terms, that he bequeaths it, or all that shall be recovered of it, to them “as a part of said legacies;” meaning, clearly, as a part of what he had, by his will, given to their mother, and then, by his codicil thereto, bequeathed and given to them.

He also speaks of the 1400 dollars as a debt due to him, which would seem to bring it within the terms of the residuary bequest: his words are, “a note or obligation for 1400 dollars, due to me by Doctor Hugh M’Donald, their father.” It would, therefore, rather seem that he meant to include these 1400 dollars in the residue of his personal estate, as forming a part of it, when he describes it as consisting of “ cash and outstanding debts.” If this be so, then it is clear, under this view of the case, that the plaintiff below had a right to claim, as the very lowest sum coming to him, the 835 dollars 41 cents, for which judgment was entered by the court below, in his favour: but it does not appear so clear that he was entitled to recover the larger sum of 976 dollars 55 cents, claimed by him; this was the one-fourth of the residue of the personal estate, if the 1400 dollars be added and taken as a part of it.

The terms of the codicil, perhaps, are not altogether free from ambiguity; for if the testator supposed, as it is possible he may, at the time of making the codicil, that the 1400 dollars would be less than one-fourth of the residue of his personal estate, including this money as a part thereof, it might then be fairly inferred that he intended to give the whole of the 1400 dollars to his granddaughters, as so much of their portion of the residue.

But it may be, that instead of this, he thought it doubtful whether the 1400 dollars could be recovered from their father, and therefore intended that they should receive the whole of it, if they could obtain it; but nothing else or more, in an3>- event, out of the residue of his personal estate, unless it should happen to exceed in amount four times 1400 dollars; in which event the testator probably intended they should each receive one-eighth of such, excess.

But seeing the writ of error has been sued out here by the executor of the will of the testator, who was the defendant below, and it is he that complains of the judgment of the court there, and not the plaintiff, we must take it that the plaintiff below is satisfied with the judgment in his favour; and hence it would be useless and unavailing to either party to decide this latter question. We therefore express no opinion in regard to it. Judgment affirmed.