Is it the intention of the testator, as expressed in the whole will, to make the expense of erecting a suitable monument to his memory, and of caring for it during the defendant's life, a charge on the land devised to him, described in the first part of the will? We think it is. Perry Tr., ss. 569, 571.
The purpose of the testator is made more apparent by slightly transposing his language, as follows: "Intending to devise to my executor, hereinafter named, my homestead farm and buildings, also four acres of land in Cedar swamp and one acre of marsh land, as hereinafter provided, I direct him to erect a suitable monument to my memory in Greenwood cemetery if the same shall not have been completed during my life, and to place a suitable inscription thereon, and the care of the same I commit to him during his life." This does not change the expressed intention of the testator, but, on the contrary, so plainly states it that his purpose is unmistakable. If he had said, I give my executor the real estate named, and he is to erect a suitable monument to my memory, and care for it during his life, it would not have been more certain. Further on in the will the testator perfects his previously expressed intention of devising the real estate to the defendant, and of appointing him his executor. The fact that the testator afterwards, in a codicil, changed this devise to an estate for life, with the remainder to the defendant's children, does not indicate a change of the testator's intention.
The clause in the will giving the defendant the real estate is followed by the residuary clause giving to him a large amount of personal property, which is understood to be substantially all that the testator died the owner of. The mere enumeration of some items in this clause prior to the words "rest and residue," does not necessarily alter their proper meaning. 2 Jar. Wills, *759, *760. In this clause of the will the testator intended to make the defendant his residuary legatee, the same as he would have been had the enumeration been omitted.
The will makes no provision for the payment of debts. These must be paid out of the personal property that passes under the *Page 474 residuary clause, if it is sufficient, and not from the plaintiff's legacy.
Case discharged.
SMITH, J., did not sit: the others concurred.