Horsey v. Thomas C. Horsey's Executors — 6 Del. 438

Majority

p. 438

Samuel H. Horsey and Wife v. Thomas C. Horsey’ s Executors.

Headnote

The testator by his will) “after his just debts and funeral expenses were paid, and his wife’s thirds were taken out,” bequeathed and devised certain portions of his real estate and certain pecuniary and specific legacies, and also the residue of his real and personal estate, to his two children. Held, that the wife was entitled to one-third of the personal, as well as one-third of his real estate under his will, after the payment of his debts and funeral expenses, to be ascertained before deducting the amount of the legacies.

This was a case stated, involving the construction of the last will and testament of Thomas C. Horsey, deceased.

The wife of the plaintiff', Samuel H. Horsey, was the widow .of the testator, Thomas C. Horsey, deceased, to whom he bequeathed by the said last will and testament as follows: “ And after my just debts and funeral expenses are paid, and my wife’s thirds are taken out, I give, devise and bequeath as follows: to my beloved wife, Ellen M. Horsey, my horse and four-wheel carriage, one bureau, one buffalo robe, one negro woman, named Emeline, until she shall arrive at the age of thirty-four years, which will be on the 25th day of August, 1850, and then to be free.” The testator then devised and bequeathed in the succeeding items of his will, to his daughter, Martha J. Horsey, certain portions of his real estate and a negro girl, named Mary, to serve to the age of twenty-eight, and then to be free, and to his son, Thomas Clayton Horsey, certain other portions of his real estate and a pecuniary legacy of one thousand dollars, payable without interest at the age of twenty-one years, also a negro boy, named John, to serve until the age of thirty years, and then to be free. “All the'.rest and residue of his estate, both real and personal, to be equally divided between his said son, Thomas Clayton Horsey, and his daughter, Martha J. Horsey, their heirs and assigns forever.”

The residue of the personal estate of the testator, after

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the payment of his debts and funeral expenses and deducting the legacies bequeathed in the will, amounted to $7582.

The questions submitted were, 1. Whether the plaintiffs, the said Samuel H. Horsey and wife, were entitled to demand and receive, in right of the said Ellen M. Horsey, the relict of the testator, from the defendants, his executors, the one-third part of his personal estate after the payment of his debts and funeral expenses ? and 2. If they were so entitled, whether that third was to be ascertained and paid without deducting from the amount of his personal estate the specific and pecuniary legacies above mentioned ?

Our opinion is, that Ellen M. Horsey, the widow of the testator, took under his will, in addition to the specific legacies bequeathed to her, the one-third part of his personal estate after the payment of his debts and funeral expenses, to be ascertained before deducting from the aggregate amount of it the specific and pecuniary legacies disposed of in his will; and that such was the intention of the testator. The first devise or bequest in his will is in these words : “ After my just debts and funeral expenses are paid, and my wife’s thirds are taken out, I give, devise and bequeath ” as follows in his will, and he then proceeds to dispose of the balance of his estate, both real and personal, as stated, and without recurring again to his wife, except with reference to a few particular articles afterwards specifically bequeathed to her. The only question that can arise in reading these words is, what was the meaning of the testator when he employed the terms, and after “ my wife’s thirds are taken out ?” What did he mean by his wife’s thirds ? Did he mean her third part of his real estate, to which she would be entitled under the dower act of 1816,' independent of the will, or her “ thirds ” in his real and personal estate, which a different law would have given her in case he had died intestate, after his just debts and funeral expenses and the costs of

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settling his estate were deducted and paid? The words “ her thirds ” by themselves are vague and indefinite and mean nothing, unless we interpret them with reference to one or the other of these acts, for the testator must himself have had reference to one or the other of them when he used it; and if so, to which of them did he refer, in order to ascertain and determine his meaning ? In the case of Burton’s will, which was similar to this, at least in this.respect, the Court held the allusion of the testator to be to the latter, or the intestate law, in order to ascertain what he meant in that case by his “ wife’s lawful, part.” Burton v. Burton et al., 4 Harr. Rep. 38 . So we think* in this case the reference is to the intestate law, which is the only law that allows a wife her thirds, literally speaking, out of her husband’s estate; that is to say, one-third of his' real and one-third of his personal estate after his debts, &c., are paid, when he leaves issue to survive him. Judgment must be given for the plaintiffs accordingly. , x

McFee, for the plaintiffs.

Moore, for the defendants.