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
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
It has already been noticed, the testator in this case ordered that all his estate, except a single lot, and confounding realty and personality, 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 personality 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.
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
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
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 any thing 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 every thing that was real and every thing that was personal; and, in
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.