
    Fisk & M’Niel, Executors, v. M’Niel.
    A by his will gave to his brother B three-eighths of all his estate; also gave several pecuniary legacies, and the balance of his effects of every description to be divided equally among testator’s nephews and nieces. No provision was made by the will, for the payment of debts. By the court; B is entitled to three-eighths of all the estate after the payment of the debts.
    The executor is bound to pay the debts out of the personal property not specifically devised.
    APPEAL from the probate court of Adams county.
    John P. M’Niel bequeathed to his brother three-eighths of his: estate in the following language: “ I bequeath and give to my brother, Malcolm M’Niel, of Christian county, Kentucky, three-eighths of all my estate.”
    Malcolm M’Niel petitioned the probate court of Adams county for an order upon the appellants as executors, to pay over to him three-eighths of the whole estate of their testator; which the appellants resisted on the ground that the petitioner was entitled to only three-eighths of the estate after the payment of the debts of the testator.
    The probate court sustained the prayer of the petitioner, and decreed him three-eighths of the entire estate of the testator, without deducting the debts. From the decree of the probate court the executors prayed and obtained an appeal.
    Grayson, for appellants.
    • In this cause but one question arises for decision, and that is, whether the three-eighths of the testator’s estate were intended not to be affected by what debts he might owe at the time of his death. The testator bequeaths three-eighths of his estate, to Malcolm M’Niel, and then proceeds to make bequests of particular sums to other individuals; and finally, the residue of his estate he gives to certain of his relations.
    
      Against the claim of Malcolm M’Niel, who claims the three-eighths without reference to the debts, it is insisted that a fair and honest interpretation of the will gives the three-eighths after the debts of the testator shall have been deducted.
    There is no language in the will that indicates a preference in the mind of the testator for Malcolm M’Niel, over that entertained for any other one of the objects of his bounty. To his natural son John Rutherford M’Niel, he gives the sum of 10,000 dollars, and the words of the bequest as applicable to him, bear evidence of as much affection as those applicable to Malcolm. Suppose the debts of the testator should amount to five-eighths of his whole estate, would or could it, upon any fair principle of construction, be insisted that Malcolm M’Niel should take the other three-eighths, and the other individuals designed to be favored by his bounty should have nothing? Change the phraseology of the testator a little, retaining, however, the sense, and suppose it to read “ I bequeath and give to my brother, Malcolm M’Niel, of Christian county, Kentucky, twenty thousand dollars of all my estate,” and “ I give and bequeath to my natural son, John Rutherford M’Niel, ten thousand dollars.” Now if, after deducting the debts, 30,000 dollars should not remain, would there not be as much reason for the abatement of the legacy to Malcolm M’Niel as that of John Rutherford M’Niel? Surely.
    The same rule of construction should apply to the last disposing clause of the will, in which the testator gives the balance of his estate to be divided equally among his nephews and nieces.
    The first clause in a man’s will generally is, after his debts and funeral expenses are paid, then he wills and bequeaths so and so. In the absence of such a clause, save in instances of express language in the will to the contrary, the law substitutes it. The testator, in the case before the court, certainly intended his debts to be paid, and having that first' in his mind, the law presumes him to proceed in making his bequests, and that subject to such a charge, he makes subsequent dispositions. Not that he makes certain bequests, and, after the payment thereof, these his debts to be paid; but in accordance with such reasoning is the claim of Malcolm M’Niel supported. He insists that his three-eighths of the whole estate shall be paid him, after which the executors are to pay the debts, and then the other legacies, including those of the residuary legatees. Certainly such a construction is not a fair one. A naan generally estimates the value of his estate with reference to his debts, and when he is about a disposition of the whole of it, it is certainly not to be presumed that his debts are wholly forgotten. A gives to B one-fourth of his estate, and the balance thereof to C. Suppose A to be worth 1000 dollars — then one-fourth would be 250 dollars — the balance would be 750 dollars. Is not such a devise in all respects like a devise of A to B of 250 dollars, and a devise to C of 750 dollars, and the one having as strong a claim to the whole amount of his bequest, in exclusion of the testator’s debts, as the other? In the case before the court, the testator gives to Malcolm M’Niel three-eighths of his estate; to John R. M’Niel 10,000 dollars; to Julia Ann Green one-half of the house in which she lived; to Stuart W. Fisk 1000 dollars; to Alexander M’Niel 5,000 dollars; and the balance of his estate to his nephews and nieces. Had the testator estimated the balance and fixed it at 20,000 dollars, the principle contended for would be the same.- The residuary legatees have as strong a claim to estimate the amount of the estate in exclusion of debts as the specific legatees.
    As against the claim of Malcom M’Neil, to the extent urged by him, it is respectfully submitted, a fair and honest construction of the will is opposed; and that the judgment of the probate court should be reversed, and the demurrer to the petition sustained. •
    McMurran, contra.
    
    The language of the testator is, “ I give and bequeath to my brother Malcom M’Neil of Christian county, state of Kentucky, three-eighths of all my estate.” No language coxrld be more clear and free from ambiguity than this. I am therefore at a stand how I shall proceed further. The maxim is, quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba fienda est. Blackstone understood the very words used in the will of John P. M’Niel, as I understand them, when he says “ if a man grants all his estate in Dale, to A and his heirs, every thing he can possibly grant shall pass- thereby.” 2 Blac. Comm. 102. The word “ all” surely means the whole, every thing, the-aggregate amount. The word estate, properly understood, signifies the interest which men have in things, and in its current popular -sense, the thing in which the interest is. Taking the word estate in either sense, the result is the same. In the one case the words of the will would be rendered, “ I bequeath, &c., three-eighths of 'the interest I have in every thing;” in the other, “ I bequeath, &c., three-eighths of every thing in which I have an interest.” Such, I am persuaded, is the construction which every man would put on the bequest, taking it simply and singly by itself, without respect to any other expression in the will or any facts or circumstances appearing from evidence aliunde. Upon examining the will with all the care of which I am capable, I find nothing on its face which renders the testator’s intention at all ambiguous, and I therefore conclude that no such expression exists, and that no question will arise upon the face of the will alone.
    But it is said that the testator is indebted, and that this- fact appearing, the residuary legatees contend that Malcom M’Niel is only entitled to three-eighths of such estate as shall remain after the payment of debts. Such a position is wholly untenable. What do we mean when we speak of latent ambiguity? We mean that by the existence of some fact not appearing upon the face of the ambiguous instrument, words or expressions which in and of themselves are not uncertain, are rendered of doubtful import. For example, if it here appeared that the testator had two brothers each named Malcolm M’Niel, and each of the .county of Christian in the state of Kentucky, it would then be uncertain rvhich was meant to be the legatee. But to create a latent ambiguity, the fact shown must be of such a kind as to render the meaning of the words themselves, as used by the testator, ambiguous, and it is not sufficient that such a fact is proved as leaves the meaning of the words themselves definite in their application and certain in their import, but render it possible that the testator might have intended to use them in a sense less comprehensive, or in a sense which they do not of themselves admit of. I can conceive of no state of proof that would raise an ambiguity in the words three-eighths of all my estate. Whether the testator was indebted or not indebted, the meaning of the words themselves, the subjects or things to which they apply and the part or proportion of those, things which they embrace remains the same; “ three-eighths” still expresses the same portions, that is six sixteenths; “ three eighths of all” still carries clearly the idea of three-eighths of every part, and three-eighths of all my estate still means three-eighths of my interest in every thing. Taking the words then separately or collectively, the fact of the indebtedness of the testator produces no shade of uncertainty in the meaning of his words. Whether the testator was or was not indebted his estate was the same. . Take the word “estate” to signify the interest which a man has in things, or the things in which he has an interest, the things and the interest in them, remain the same, whether he owe not a cent, or is indebted*to insolvency. It is true that it may be necessary to apply part or the whole of the estate to the payment of the testator’s debts, but the fact that it is so to be applied by the executor proves, that it was then his estate, otherwise it would not be so applied.
    The debts are the debts of the person, not of the person’s estate? unless they are charged upon the estate. It is so understood by lawyers, when they take the distinction between a rent, charge and debts chargeable upon the person; it is so understood by the community at large. How common is the expression, “ he owns a large estate, but it will take it all to. pay his debts,” and equivalent expressions? Every man in the community takes a distinction between what a man’,s estate is, and what it would be if so much were deducted from it as would be necessary to pay his debts. Now a will speaks at the time of the death of the testator, and when the will reads “ I bequeath, &c., three-eighths of all my. estate,” the meaning is precisely, the same as would have been that of the testator, if he at the time of his death had said, “ I give, &c., three-eighths of all the estate I now own.” -Suppose I were to contend, that proof that he was indebted to a certain degree, showed that when he said three-eighths of all his estate, he meant two-eighths of all his estate, and that to show he was indebted to a larger extent, would prove that when he said three-eighths of all his estate, he meant one-eighth of it, and that to extend the proof of the amount of debt yet higher, would prove that his meaning in using the words “ three-eighths,” was to express the intention to give only one-sixteenth, and that if the proof showed that his estate would not be sufficient to pay his debts, he then intended by saying “ I give three-eighths of all,” to convey the idea that he intended to give no part.
    Thus stating the terms of my arguments could I reasonably expect a patient hearing from any judge? and yet the position assumed by the residuary legatees, varies not at all from that which I should then attempt to maintain. The’ only difference is in the mode of stating the argument. This is too obvious to require proof. The construction contended for by the residuary legatees will require this reading of the will, “ I bequeath to my brother, &c., three-eighths of so much of my estate as may remain after the payment of my debts.” How different the idea conveyed to the mind by this reading, from that conveyed by the plain and unambiguous- words of the testator. Such a reading would not be a construction of the will, but the making of a will for the testator, materially different from that made by himself. The words and the idea of three-eighths of the remainder are an interpolation upon and not a construction of the text; for in that nothing is to be found not wholly inconsistent with it. It would violate every rule of interpretation, either of common sense or law which I can now call to mind and bring to bear on the case.
    1. It is a rule that a will shall be so construed as to give effect to all its parts, and so that every word, if possible, shall have effect, unless by giving effect to every word the genuine intention of the testator would be departed from. Gray.u. Minnethorpe, 3 Yes. 105; Blanford v. Blanford, Roll. 319; Constantine v. Constantine, 6 Yes. 103. The word “ all” can here have no effect but to exclude the possibility of his having intended three-eighths of the remainder after the debts were paid. It is only in cases where the words are indefinite, or there is a conflict between different provisions, that the court reject or supply words. Then they must do so, because they are left by the testator’s defective mode of expressing his intentions, to collect them ,as well as they can, from the different parts of the will. Under such circumstances the court will reject such words used by, and supply such omissions of the testator, as become necessary to give effect to the intention collected from the whole of what he has said. But the intention is always collected from what he has said. Dam v. Bagshaw, 6 Tenn. Rep. 513; White v. Warner, Douglass, 344; 6 Tenn. Rep. 517; 1 Ves. & B. 389; 5 Ves. 578; 3 Ves. 317. Here the residuary legatees contend that the word “ all” should be rejected, or have no effect, and that the words “ such part of my estate as shall remain after payment of debts,” be supplied, when there is nothing on the face of the will to bring the meaning of the testator into the slightest doubt.
    3. It is a rule that the obvious meaning of words shall not be rejected upon any suspicion that the testator did not understand what they meant. Melves v. State, 8 Ves. 306. Now the obvious meaning of the testator’s words is, that Malcom M’Niel shall have three-eighths of all his estate; that is, of every thing that was his property; for the word estate, like the word property, is nomine generalis, including every thing which is the subject of ownership. If we take it that the testator understood the force and meaning of his words, the question is at an end, for then it is clear that he, understanding their true import, intended that Malcom M’Niel should take three-eighths of the whole, without abatement for debts. If in point of fact he did not understand their import, we cannot know it, we may possibly conjecture it. Even if it were permissible to show by parol, that he did not understand the meaning of the words used, the fact that he was indebted has no tendency to show it; it has no bearing on the question. What did he understand to be the import of the words “ all my estate?” If it should be conceived to have such bearing, (and that I think impossible,) that bearing must be so remote, that it cannot in the nature of things create conviction, but can only'raise a suspicion, and a suspicion of the slightest kind, that he did not understand the words he used.
    3. An unambiguous disposition of property by will, though it ‘ probably involved an oversight or mistake by the testator, cannot be controlled by inference, unless such inference is, in the proper sense of the terms, necessary and indubitable. It is considered and with good cause the only safe course, to abide by the words of the will. 1 Yes. Jun. 267; Wainwright v. Wainwright, 3 Yes. Jun. 55’8; Crook v. Devandes, 9 Yez. 205. Maddock ^says, “ In cases where evidence is admissible and operates, it must be conclusive to have effect. If it affords only a high degree of probability, it is insufficient. 1 Madd. Chan. 84.
    4. Parol evidence is inadmissible to show that by “ three-eighths of all my estate,” the testator meant three-eighths of such part of his estate as should remain after payment of his debts. Starkie says, (3 Starkie on Ev. 1010,) “ Parol evidence of the intention of the testator, is in no case admissible, to contradict the express terms of a will.” It is only admissible to rebut a resulting trust. Now if parol evidence is inadmissible to prove directly, that by three-eighths of all his estate, he meant three-eighths of what remained after payment of debts, a fortiori, is it inadmissible to prove indebtedness, and from that to infer such intention? Lord Thurlow says, “ the law of this court is, that the intention of a testator in making a specific bequest or giving a pecuniary legacy cannot be controlled by the statement óf his fortune. Fonnereau v. Poynts, 1 Bro. C. C. 478. It is said, “ no rule of law is more clear, than that a will is not to be expounded by extrinsic evidénce. Prec. Ch. 401; 1 Roper on Leg.- 222.
   Mr. Chief Justice Shareey

delivered the opinion of the court.

John P. Niel by his will gave to his brother Malcolm M’Niel, three-eighths of all his estate, and also gave several pecuniary legacies with one specific legacy, and the balance of his effects, of every description, to be divided equally among his nephews and nieces. No provision was made for the payment of debts, and Malcolm M’Niel claims his three-eighths of the entire estate at the time of his death, and insists that the debts are properly chargeable on the balance, and not on his part.

It is a settled rule in the construction of wills, that the intention of the testator must be carried into effect, if it can be done consistently with the laws of the land, and the intention is to be gathered from the whole will. By the laws of this state, all the property of a deceased person is liable for the payment of his debts. First, the personal property, and in case that be insufficient, then the real estate. The debts constitute a lien by operation of law, and although a testator may designate a particular property or fund for the payment of his debts, yet he cannot remove that general liability which the law fixes on all his property in case the particular fund be insufficient. Nothing is, therefore, disposable estate, unless it be over and above the amount required for the payment of debts.

In the absence of any express provision, or the designation of any particular fund for the payment of debts, I think it is a fair presumption, that tbe testator made the bequest in view of the general liability fixed by law, and that he intended to give the respective legacies out of the residue of his estate, after the demands of the law should be satisfied. It would be different as regarded specific legacies, but the three-eighths of his estate devised to Malcolm M’Niel, was not a specific legacy. • The term “ three-eighths of my estate,” used by the testator, it is insisted must be understood to include such a portion of all that the testator possessed at the time of his death; but I apprehend the word all” was used to designate the kinds of estate being real and personal, rather than the quantity previous to the payment of debts. This is the more probable, as the testator used the term “ estate” only without the appropriate words to designate the kinds of estate held by him. If he is entitled to three-eighths of the whole of the property, exclusive of the debts for which it was liable, he was entitled to have his portion set apart in kind, out of each particular species of property. Such a construction is opposed by two difficulties. First, the éxecutor is bound to pay the debts out of the personal property not specifically devised. Suppose, after taking out the three-eighths of the personal property, the balance should be insufficient to pay the debts. The real estate could not be sold for that purpose, without an order from the court, to obtain which, the executor must show that the personal property, not specifically bequeathed, had been exhausted or would be insufficient. In this case, he could make no such showing, because the portion of Malcolm M’Niel is not a specific legacy. Again, the executor is not, by our law, compelled to make a division or distribution, until after the expiration of twelve months from the grant of his letters, during which time he had a right to hold the property, and use it in discharge of the debts. This power and duty seems to be inconsistent with the claim of Malcolm M’Niel. If he was entitled to his portion of the whole property, which was owned by the testator at the time of his death, he was, of course, entitled to a division, because the particular property, to which he was entitled, was not specified in the will. The first duty of the executor Avould have been to divide the estate, for the purpose of ascertaining what particular property was exempt from liability, unless the residue, after division, should be insufficient. There is no rule of law which will exonerate personal property, by appropriating real property for the payment of debts, unless it be done to protect specific legacies, and such a result might be produced by the construction contended for, by the counsel for the appellee.' And although the personal property in the present case, even after deducting the amount claimed, may have been entirely sufficient to pay all the debts, yet the rules of law must be general in their operation, and it cannot be a sound rule of construction which must be varied by the circumstances of each particular case. Suppose, that after deducting the three-eighths, all the balance of the estate would have been required to pay the debts, would it not be unreasonable that the three-eighths should be exonerated by exhausting all the other legacies equally specific in their character? That the estate was sufficient to protect all the legacies in the present instance, cannot alter the case. If the claim of Malcolm M’Niel be just, it must be supported by some principle of preference, which would have applied with equal force under different circumstances.

I think this question can be readily determined by an application of the rules for marshalling assets. The order adopted is, first, personal property; secondly, lands descended, and thirdly, lands devised. 3 Johns. Chan. Rep. 319. 153. This rule is entirely consistent with our statute law, and in applying it, we have only to examine the provisions in the will, and the facts set out in the petition. In the first place, there is no descended property, the whole estate being disposed of by the will. Regarding the whole estate as devised, it must be liable in the order which the law has prescribed; first, the personal property, and secondly, the lands, unless a different order of liability is produced by the character of the legacies. There is one specific bequest, which of course is entitled to exoneration, but as regards the others, they all stand upon the same ground, and must be liable to an equal abatement. This is • the necessary result produced by the absence of a specific character. Legacies are only regarded as specific 1. When a particular chattel is specifically described, so as to be distinguishable from all others; and 2. Something of a particular species. S Dessauss. 50. The three-eighths devised to Malcolm M’Niel, is so much of the estate, and there is nothing to render it specific; no distinguishing characteristic, by which it could be separated from the remainder of the estate; and being'thus an undivided,'unknown portion, there can be no just ground for exhausting first, the shares of the residuary legatees, as the petitioner’s counsel has urged. The residuary clause in the will, is to be construed as disposing of all property not previously disposed of by the testator, and not the residue after debts paid; 2 "Johns. Chan. Rep. 624; and in this light, places the residuary legatees on equal grounds with Malcolm M’Niel. As nothing is said in the petition, about the appropriation of the real estate, it is to be presumed that it remains uninterrupted, and that the executors have paid the debts out of the personal property. Malcolm M’Niel is, of course, entitled to his three-eighths of the real estate set apart, when he shall make proper application for that purpose. His portion of the personal property seems to be more particularly the object of the petition, and he is only entitled to his three-eighths of what remains after the payment of the debts.

The judgment of the probate court must be reversed, and the cause remanded.  