gathered from the will. Where a testator gave to his wife the use for her life of all his real and personal estate, and directed that a certain legacy, given to one of his sons as the sum which the testator considered equitable, due this son for services rendered, should be paid out of the personal estate on hand at the time of the death of the wife, but the personal property was insufficient to pay the legacy, the court decided that the legacy was not a charge upon the real estate of the testator, which he specifically devised to the legatee and another son subject to the payment of other legacies53. In this case the charges were specific, one of the charges was specifically upon personal property, while the others were a charge upon real estate. In a case where a testatrix devised and bequeathed all of her "real estate, personal property, and household effects," to a nephew, subject to the provision that he pay certain legacies, and upon his death the real estate should pass to others, the will was construed to mean that the real estate as well as the personal property was charged with the payment of the legacies54. A legacy can be a charge upon real estate by necessary implication55. Specific legacies and specific devises are not chargeable with the payment of demonstrative or general legacies unless made so expressly or by clear implication.

Where land was devised to the husband, it was subject to the legacy of the son57. The legacies in a will devising

53. Hibler v. Hibler, 104 Mich. 274, 62 N. W. 361.

54. Chase v. Warner, 106 Mich. 695, 64 N. W. 730.

55. Smith V. Jackman, 115 Mich. 192, 73 N. W. 228.

56. Hibler v. Hibler, 104 Mich.

274, 62 N. W. 361.

57. In re Appeal of Moore, 84 Mich. 474, 48 N. W. 39. Other cases are: Gadd v. Stoner, 113 Mich, 689, 71 N. W. 1111; Enders v. Enders, 49 Mich. 182, 13 N. W. 507; De Coo v. Woodworth, 96 Mich. 302, 55 N. W. 987.

LIABILITIES ON DEVISES AND BEQUESTS

$140

and bequeathing all the real estate, mortgages, notes and other securities to her daughter, with the understanding that she shall pay certain legacies out of her portion of the real estate, were general charges upon the entire estates.

§140. Liabilities on Devises and Bequests.

39

The statutes declaring that all of the property of a testator shall be chargeable with the payment of all of his debts, and creating an equitable lien in favor of creditors, are valid. The effect of the statute is not destroyed by the execution of the statutory bond by a residuary legatee, which becomes an additional security for such payment1. The debts were to be paid out of the real as well as personal estate, where the intention of the testator was manifest by giving direction to pay debts, followed by a residuary clause disposing of all his property, both real and personal62. Under statute 3, a decree for contribution by devisees and

58. In re Owen's Estate, 138 Mich. 293, 101 N. W. 525.

59. C. L. 297, §9289. All the estate of the testator, real or personal, shall be liable to be disposed of for the payment of his debts, and the expenses of administering his estate, and the probate court may make such reasonable allowance as may be judged necessary for the expenses of the maintenance of the widow and minor children, or either, constituting the family of the testator, out of his personal estate, or the income of his real estate, during the progress of the settlement of the estate, but never for a longer period than until their shares in the estate shall be assigned to them.

60. Lafferty v. People's Sav. Bank, 76 Mich. 51; Burns v. Berry, 42 Mich. 176; Winegar v. Newland, 44 Mich. 367; Pierce v. Holzer, 65 Mich. 263; Hoffman v. Beard, 32 Mich. 218. See In re Corby's Estate, 154 Mich. 352; Hill v. Judge, 128 Mich. 77. As to all the estate being liable, see Allison v. Smith, 16 Mich. 426. As to allowance to widows, see Bacon v. Judge, 100 Mich. 183; Pulling v. Judge, 88 Mich. 389; Pulling v. Judge, 85 Mich. 34; North v. Judge, 84 Mich. 69.

61. Lafferty v. People's Sav, Bank, 76 Mich. 35, 43 N. W. 34. 62. Lafferty v. People's Sav. Bank, 76 Mich. 35, 43 N. W. 34.

63. C. L. '97, §9296. The probate court may, by decree for that

legatees in payment of debts and other liabilities of the estate is nothing more than a personal judgment64. Liens and encumbrances on lands are charges against the estate.

purpose, settle the amount of the several liabilities, as provided in the preceding sections, and decree how much, and in what manner, each person shall contribute, and may issue execution as circumstances may require; and the claimant may also have a remedy in any proper action or complaint in law or equity.

64. Frost v. Atwood, 73 Mich. 67, 16 Am. St. Rep. 560, 41 N. W.

96.

65. Enders v. Enders, 49 Mich. 182, 13 N. W. 507. See Lawrence v. Hathaway, 128 Mich. 118, 87 N. W. 84. As to apportionment of debts, see Frost v. Atwood, 73 Mich. 67, 16 Am. St. Rep. 560, 41 N. W. 96.

CHAPTER IX.

THE NATURE OF THE ESTATE CREATED.

§141. General Rule of Inheritance.

$142. Words Necessary to Create Estates in Fee.

$143. Words Necessary to Create Life Estates.

$144. Life Estate Created with a Disposition Over.

8145. Life Estates in Relation to Direction to Support.

$146. Estate in Fee, Limitations, Repugnant and Inconsistent Provi

sions.

$147. Estate for Life, Limitations, Repugnant and Inconsistent Pro

visions.

$148. Statutory Provisions by Which Estates-tail Are Converted Into Other Estates.

$149. The Rule in Shelley's Case.

$150. Remainders.

$151. Executory Devise and Contingent Remainder.

$152. A Conditional Fee.

$153. Estate Created by Use of the Words, "Dying Without Issue." $154. Estate in Severalty.

$155. Estate in Fee. Devise with Power of Disposition.

$156. Estate for Life with Power of Control or Disposition.

$157. Estates Created in Personal Property.

$158. Annuities and Incomes.

$159. The Enforceability of a Gift of Income Charged with Support. $160. The Income Passes to Whom.

§161. Duration of Annuities.

§141. General Rule of Inheritance.

The general rule of inheritance was that the heir could be disinherited only by words which disposed of the entire estate of the testator. Although this rule does not obtain absolutely in its application, yet it is manifest that the law favors that construction of a will which will make a distribution as nearly conformable to the general rule of inheritance as the language will permit', for it is a maxim

1. Rivenett v. Bourquin, 53 Mich. 10, 18 N. W. 537.

that an heir at law can only be disinherited by express devise or necessary implication, and that implication has been defined to be such a strong probability that an intention to the contrary cannot be supposed. It is apparent then that heirs at law are not to be disinherited by conjecture, but only by express words or by necessary implications. Equities rather than technicalities will be carried out and performed. In general it may be said that it is the substance rather than the form which must be considered in the construction of a will5. All intendments must favor the will as against a partial intestacy. It is apparent then under this rule that where the will does not naturally lead to the inference that a testator means to die intestate as to a part of his estate no such presumption will arise. Courts cannot inquire into the propriety of any disposition which the testator sees fit to make but are bound to carry out his expressed wishes, so far as they are not unlawful in the substance and spirit of the words creating the devises and bequests.

§142. Words Necessary to Create Estates in Fee.

The principle is well established that wills are more liberally construed than deeds, and that the technical word "heirs" is not absolutely necessary to pass a fee. Although the general use of the term "heir" naturally gives rise to

2. Southgate v. Karp, 154 Mich. 697.

3. Southgate v. Karp, 154 Mich. 697.

4. Rivenett v. Bourquin, 53 Mich. 10, 18 N. W. 537.

5. Toms V. Williams, 41 Mich. 552, 2 N. W. 814.

6. Toms V. Williams, 41 Mich. 552, 2 N. W. 814.

7. Bailey v. Bailey, 25 Mich. 185.

8. Toms V. Williams, 41 Mich. 552, 2 N. W. 814.

9. Mullreed V. Clark, 110 N. W. Mich. 229; Goodell v. Hibbard, 25 Mich. 185.