1. Where the intent of s testator to make a complete disposition
of all his property is manifest throughout his will, its provisions
should be so construed, if they reasonably may, as to carry that
intent into effect.
2. While an apparent general intent cannot control his
particular directions plainly to the contrary or enlarge
dispositions beyond their legitimate meaning, it is of weight in
determining what he intended by particular devises or bequests that
may admit of an enlarged or a limited construction.
3. The rule in the construction of wills, where certain things
are enumerated, that a more general description, which is coupled
with the enumeration, is commonly understood to cover only things
ejusdem generis with the particular things mentioned rests
on a mere presumption, easily rebutted by anything which shows that
the larger subject was in fact in the testator's view.
4. The will in this case construed, and
held 1. that
the testator intended to dispose of his entire estate, and not to
die intestate as to any portion of it; 2. that his direction to his
executors to sell all his estate not otherwise devised and
bequeathed was intended to secure a complete conversion, to all
intents, of his entire property into personal estate; 3. that with
the exception of the lot devised, his entire estate, both real and
personal, after the payment of his debts and of the legacies prior
to that given to the residuary legatee, passed to the latter.
The bill in this case was filed by John Emory Hilton and certain
other heirs-at-law and next of kin of John P. Hilton,
Page 95 U. S. 592
against John T. Given and Carberry S. Hilton, his executors and
others, to obtain judicial construction of his last will and
testament. It prayed for an injunction restraining the executors
from selling any portion of the real estate until they should first
have applied the personal estate to the payment of debts and the
legacies specified in the will, and, in the event of any
deficiency, then to sell no greater portion of such real estate
than would be sufficient to discharge such debts and legacies.
The court decreed that the debts due by the deceased were to be
first paid, then the legacies, and both from the personal estate,
if that be sufficient, but if not then that the real estate be
resorted to, but only to discharge any deficiency, and that the
residue of said real estate be equally divided among the heirs.
From this construction of the will the defendants appealed to
this Court.
This will, which was duly attested and admitted to probate, is
as follows:
"In the name of God, amen. I, John P. Hilton, of Washington
City, in the District of Columbia, . . . do . . . make and publish
this my last will and testament, in manner and form following, that
is to say: . . ."
"After my debts and funeral charges are paid, my worldly estate,
with which it hath pleased God to entrust me with, I devise and
bequeath as follows:"
"
Item. As soon after my decease as possible, I direct
that my debts and funeral expenses be paid out of any portion of my
estate which may first come into the hands of my executors
hereinafter named."
"
Item. Secondly, I direct that all of my estate, except
such as is hereinafter otherwise devised and bequeathed, be sold by
my executors at as early a day as practicable, upon such terms and
conditions as may seem best in their judgment for the best interest
of all herein concerned, and that the proceeds arising therefrom
shall be divided in the following manner and proportions as they
are first herein named, written, and stated, as far as the amount
realized from the sale of my said estate will allow,
viz.:"
"
Item. I give and devise unto my king and obedient son,
Carberry S. Hilton, and my grandchildren, John Perry Hilton and
Harry Slicer Hilton, sons of Carberry S. Hilton, all that part of
lot eight (8) of Davidson subdivision of square two hundred and
Page 95 U. S. 593
fifteen (215), fronting on 14th Street west, between L and M
Streets north, with the improvements -- that is to say, one-half of
the said lot and improvements to the said Carberry S. Hilton, in
fee simple, and the remaining half as he may choose, to him the
said Carberry S. Hilton, in trust for the sole use and benefit of
his said children, John Perry Hilton and Harry Slicer Hilton, in
fee simple, to be equally divided between them."
"[Here follows a number of pecuniary legacies.]"
"
Item. I give and bequeath unto my kind, affectionate
son, Carberry S. Hilton, all the rest and residue of my estate of
which I may die seised or possessed, which is not herein otherwise
devised and bequeathed, such as moneys, bonds, stocks, judgments,
notes, household furniture, and all personal effects of every
description, and not herein otherwise disposed of, for his sole use
and benefit and that of his children."
"
Item. I direct that the rents accumulating from my
estate, until such time as my executors shall have disposed of the
same, shall be distributed as follows: after deducting all expenses
for repairs, taxes, and insurance, the same shall be equally
divided among my four children, namely Carberry S. Hilton, Ann
Terring Smith, John Emory Hilton, and Laura R. Morsell."
"And lastly, I do hereby constitute and appoint my dear son,
Carberry S. Hilton, and my esteemed friend, John T. Given, of
Washington City, District of Columbia, to be sole executors of this
my last will and testament, revoking and annulling all former wills
by me heretofore made, ratifying and confirming this and none other
to be my last will and testament, requesting that my son, Carberry
S. Hilton, the first-named executor of this my will, that he make
no charge for any service he may render in the execution
thereof."
"In testimony whereof, I have hereunto set my hand and affixed
my seal this nineteenth day of March, in the year of our Lord
eighteen hundred and seventy-three."
"[SEAL] JNO. P. HILTON"
MR. JUSTICE STRONG delivered the opinion of the Court.
The ultimate question in this case is what passed under the
residuary clause of the testator's will. It can be answered
Page 95 U. S. 594
intelligently only after a careful examination of all the
provisions of the instrument, and an ascertainment therefrom of the
testator's general scheme. That he intended to make a complete
disposition of all his property, leaving none to pass under the
intestate laws, is abundantly manifest. He commenced by declaring
that, after his debts and funeral charges were paid, he devised and
bequeathed the worldly estate with which it had pleased God to
entrust him. Next followed a direction that these debts and
expenses should be paid, as soon after his decease as possible, out
of any portion of his estate that might first come into the hands
of his executors. Then followed a direction that all his estate,
not otherwise devised and bequeathed (all except a single lot of
ground devised to a son), should be sold as soon as practicable,
and that the proceeds thereof should be divided in a manner and in
proportions described thereafter. Here the real estate and the
personalty are commingled and treated as one fund. All is to be
converted into money, and all is to be distributed; and, to guard
against the least intestacy, and insure that all his estate should
pass under his will, by a subsequent disposition he disposed of the
rents that might accumulate from his estate, before the executors
should sell it, by distributing them among his children. These
dispositions are utterly inconsistent with an intention to leave
any portion of his estate to descend under the intestate laws; and
they accord with the general rule that no presumption of an intent
to die intestate as to any part of his property is allowable when
the words of a testator's will may fairly carry the whole.
Stehman v. Stehman, 1 Watts (Pa.) 466. The law prefers a
construction which will prevent a partial intestacy to one that
will permit it, if such a construction may reasonably be given,
Vernon v. Vernon, 53 N.Y. 351, and certainly when, as in
this case, the intent to make a complete disposition of all the
testator's property is manifest throughout his will, its provisions
should be so construed, if they reasonably may be, as to carry into
effect his general intent.
We do not mean to be understood as asserting that an apparent
general intent to make by his will a complete disposition of all a
testator's estate can control particular directions plainly
Page 95 U. S. 595
to the contrary, or enlarge dispositions beyond their legitimate
meaning. What we do assert is such a general intent is of weight in
determining what was intended by particular devises or bequests
that may admit of enlarged or limited constructions.
It has already been noticed, the testator in this case ordered
that all his estate except a single lot and confounding realty and
personalty should be sold by his executors as soon as practicable.
This sale he directed to be made upon such terms and conditions as
might seem best in their judgment for the interests of all
concerned in the will, and he directed the proceeds arising
therefrom to be divided in the manner and proportions, "as first
written, named, and stated" in the will, as far as the amount
realized from the sale would allow. Then followed a devise of the
excepted lot, and various pecuniary bequests, succeeded by a
residuary legacy to his son, given in the following words:
"I give and bequeath unto my kind and affectionate son, Carberry
S. Hilton, all the rest and residue of my estate, of which I may
die seised or possessed, which is not herein otherwise devised and
bequeathed, such as moneys, bonds, stocks, judgments, notes,
household furniture, and all personal effects of every description,
and not herein otherwise disposed of, for his sole use and benefit
and that of his children."
If by this residuary clause the testator intended to give only
the residue of that which was personalty immediately preceding his
death, then he died intestate as to all his real estate not needed
for the payment of his debts and other legacies and as to the
surplus of the proceeds of its sale not necessary for those
payments. Then there is a resulting interest in all his children as
collectively heirs-at-law, and, as that which was personalty at his
death is, by admission, largely insufficient for the payment of
those debts and legacies, the residuary legatee takes nothing under
the bequest to him, for the personal property is first to be
applied to discharge the debts and legacies. But on the other hand,
if by the direction to sell all his estate the testator intended
its conversion into personalty out and out, or for all intents, and
not merely for the payment of the legacies prior to the residuary
gift, the residuary clause carried all that may remain after those
legacies shall be paid.
Page 95 U. S. 596
It is a fundamental question, therefore, whether the testator's
direction to his executors to sell "all his estate" worked an
absolute conversion of his realty into personalty. It is
undoubtedly established doctrine that when a will directs
conversion of realty only for certain purposes, which are limited,
for example, for the payment of particular legacies, and follows
the direction by a bequest of the residue of personal estate, the
conversion takes place only so far as the proceeds of the sale are
needed to pay the legacies prior to the residuary one, and the gift
of the personalty will not carry the produce of the sale of the
lands in the absence of a contrary intent plainly manifested. The
surplus or excess retains the quality of realty, and is transmitted
either by a devise of the realty, if there be one, or descends
under the intestate laws. Hence it is often a question, and
frequently a difficult one, whether the direction to sell was for a
limited purpose, or for all purposes, and consequently whether the
testator's intent was to impress upon all the proceeds of the sale
the quality of personalty. There are certain things which are
considered indicative of an intent to cause a complete conversion.
It has been held that a general direction to sell and apply the
proceeds indiscriminately to the payment of debts and legacies
operates as a conversion out and out. Roper on Legacies 341, 342
et seq.; King v. Woodhull, 3 Edw. (N.Y.) 82;
Durour v.
Motteux, 1 Ves. 320.
Blending the proceeds of realty and personalty in one fund for
the payment of debts and legacies is generally regarded evidence of
an intention to give to the proceeds of a sale ordered the
character of personalty throughout, though not a conclusive
indication in all cases. These indications exist in the will before
us, and were it necessary they might be called in aid of its
construction; but after all, little assistance is derived from
general rules in the construction of a will. The intent of a
testator is to be sought in the instrument itself. In making it, he
does not often have in mind any particular rules of construction
applied to other wills. He uses those expressions which he supposes
convey his own thought and wishes.
Turning, then, to the will before us, the first thing noticeable
is that the direction to sell was positive, and that it
comprehended all the estate. The testator must have known that
Page 95 U. S. 597
his personal property was largely insufficient to pay his debts,
funeral expenses, and the pecuniary legacies he proposed to give.
Yet his order was not to sell so much of his real estate as might
be necessary for satisfying debts and certain legacies, not that
what should prove lacking of personalty should be supplied from
sales of realty, but all was directed to be sold, whether necessary
for the payment of legacies or not, and in the direction he
recognized the interest of the residuary legatee as fully as he did
the interests of any other legatee therein. The executors were
required to sell on such terms and conditions as in their judgment
might seem best for the interests of all concerned in the will. The
residuary legatee was one of those concerned. Why consult his
interest if, as a beneficiary under the will, he had no concern in
the sale, if by virtue of the legacy to him he was to have no
portion of the proceeds of the sale, and if what remained after
payment of the legacies prior to his was intended to continue
realty, and descend under the intestate laws?
The will further directed that the proceeds of the sale,
i.e., the whole proceeds, should be divided in the manner
and proportions first in the will named, written, and stated, as
far as the amount realized would allow. It is not quite clear what
was meant by this direction, but it rather seems the intent was
that if the sum for which the property might be sold should prove
insufficient to pay all the legacies in full, they should be paid
in the order named -- that is that the legatee first named should
be first paid, and so on, in the order in which the different
beneficiaries were mentioned, down to the residuary legatee. If
this is not so, the word "first" can have no significance, and then
the testator intended that legacies to his children and
grandchildren should abate ratably with his gifts to strangers; but
however this may be, it was a fund arising from the sale of the
testator's whole estate that was to be divided among legatees, and
the residuary bequest to the son, Carberry S. Hilton, was as truly
a legacy as any one of the gifts that preceded it. We can discover
nothing, therefore, in this clause of the will that indicates an
intent to effect only a partial conversion, or merely a conversion
for the payment of those legacies which preceded the residuary
bequest. On the contrary, the more reasonable
Page 95 U. S. 598
and the true interpretation, we think, is that the testator
meant to direct a complete conversion, to all intents, of his
entire property into personal estate. If so, the residuary bequest,
even if it was only a legacy of his personal estate, carried to the
legatee not only that which was personalty at his death, but that
which by the conversion he ordered became personalty.
But it is not to be admitted as certain that the subject of the
residuary bequest was personal property alone. Certainly the
bequest is not an ordinary gift of the residue of personalty. Its
phraseology is very peculiar. Were it not for the enumeration of
"moneys, stocks, judgments, notes, household furniture, and all
personal effects of every description" (most of which, if not all,
may have been the product of the sales of the real estate ordered
to be sold), the residuary clause, beyond doubt, would be broad
enough to carry real estate, as well as all personalty. It is
doubtless true that in the construction of wills as well as of
statutes, where certain things are enumerated and a more general
description is coupled with the enumeration, that description is
commonly understood to cover only things
ejusdem generis
with the particular things mentioned. This is because it is
presumed the testator had only things of that class in mind, but
this rule of construction rests on a mere presumption, easily
rebutted by anything that shows the larger subject was in fact in
the testator's view. In the present case, it is quite plain the
testator had in mind all his estate, whether realty or personalty,
when he made the disposition of the residue. Indeed, he must have
had his real estate, or the proceeds of his sale, mainly in view,
for as we have said, he knew that his personal estate would be
exhausted by the payment of debts and prior legacies. And this
appears in the language he used. He gave unto his "kind and
affectionate son" all the rest and residue of his estate of which
he might die seised or possessed, not otherwise devised and
bequeathed (enumerating some species of personal effects), and all
personal effects of every description, not otherwise disposed of by
the will. This included not only that which he possessed -- namely,
personalty -- but also that of which he was seised -- his realty.
The form of his expression denotes that he had before his mind at
the time alike everything that was real and everything that was
personal, and in
Page 95 U. S. 599
making the bequest, he used the most comprehensive language
which could have been adopted.
The residuary gift therefore ought not, in view of the whole
will, to be construed as embracing only the remainder, if any, of
that which was personalty at the death of the testator. Its scope
was larger. It embraced all of the testator's estate, both realty
and personalty, not devised or bequeathed by the preceding
dispositions of the will.
This construction is fortified by another consideration.
Carberry S. Hilton, the residuary legatee, was a favorite son of
the testator. This appears from the manner in which he is more than
once spoken of in the will. No other pecuniary legacy is given to
him, and it cannot be believed that his father intended, by his
residuary bequest, to make to him a barren gift and leave a portion
of his estate to descend under the intestate laws.
We conclude therefore that the Supreme Court of the District
erred in its construction of the will and in the decree made so far
as it was ordered that any portion of the residue of the testator's
estate, after the payment of his debts and of the legacies prior to
that given to the residuary legatee, should be equally divided
among the heirs, and in not decreeing that the whole of the estate,
except the lot devised, both real and personal, after the payment
of those debts and legacies, passed, under the residuary clause, to
Carberry S. Hilton.
Decree reversed, and the record remitted with instructions
to enter a decree in accordance with this opinion.
