Newsom v. Thornton. the residuum after paying the legacies, as otherwise there could have been no residue. Paxson v. Potts, 2 N. J. Eq. 313. In Couzon v. Couzon, 7 H. L. Cas. 168, the testator, after having devised freehold estates to trustees for a term of years, to pay an annuity to his wife and to one of his sons for life, the estate on the death of the son to go to his sons in tail male, having given other lands to other sons, and having created and given legacies, directing the properties to fall, in certain events, into his residuary estate, added at the end of the will, which also contained a residuary clause, embracing property both real and personal: "In case my personal and chattel property shall be inadequate to the payment of the pecuniary legacies bequeathed by this my will, the deficiency shall be paid out of my real and freehold estates, and I hereby charge and incumber the same with the payment thereof;" and by codicil said: "I charge and incumber all my estates of every description, both real and personal, with the following legacies," being some additional pecuniary legacies. It was held that the legacies were not charges on the specifically devised estates. Alluding to a decision of Lord MANNERS, in Spong v. Spong, on a will containing substantially similar provisions, the lord chancellor says: "The principle which I collect from that case is, that where there is a specific legacy or devise once given in a will, the presumption is that it is the intention of the testator that the legatee or devisee should have it as it is given, in its integrity and without derogation; and that a general charge, which in terms may comprehend the specific bequest or devise is not sufficient of itself to show an intention to take it away again." And Lord CRANWORTH says: "The rule is, that the presumption is against an intention to charge lands specifically devised, and that a mere charge on all my lands,' is not sufficient to rebut the presumption." The principle settled in Spong v. Spong, 3 Bligh, 84, was re-examined and reaffirmed. We do not make these citations, as expressive of our concurrence in the particular application, but as a forcible statement of the rule and as illustrating the strength of the presumption in favor of the exoneration of lands specifically devised. It is unnecessary for us to go so far, as the will under construction contains no general charge which comprehends in terms the specific devise. Whether it is included in the charge as created is matter of implication. The principle settled by the decision is, that in construing charges VOL. LX-94 Newsom v. Thornton. of legacies, specific and residuary devises are to be distinguished, though for many purposes of a common nature. It is not a case of blending. A specific devise or bequest separates a part of the property from the rest, which ordinarily is not subject to the provisions of the will as to the residue. A residuary clause, to have of itself the effect of creating a charge, must embrace all the real estate, otherwise it will be presumed that the testator intended only that portion which had not been previously given. The gift of a pecuniary legacy, followed by a devise of the residue of the estate, real and personal, will not by itself create a charge for its payment on lands previously disposed of in the will. 2 Lead. Cas. Eq. 348; Lupton v. Lupton, 2 Johns. Ch. 614. The expression, "to be paid unto her as soon as possible out of my estate," does not rebut the presumption. It may be contended that payment of the specified legacies is one of the conditions upon which the devise is made; as included in the words, "upon conditions hereinafter expressed." Such seems to be the theory upon which the decree is founded. It is apparent from the structure of the will, that the expression of the conditions was reserved until all the devises and bequests to Whitmell Newsom were provided; until the property given to him was sufficiently designated, and the whole estate disposed of. The conditions to be expressed apply only to the property conditionally given to him, not as affecting its quantum, but the nature of the gift, the management, control and preservation of the property, and the continuance of the estate. Such conditions, thereinafter expressed, are contained in the provisions of the will which follow the residuary clause, and the language on which the charge is rested, and which provide that the property given conditionally shall be kept together and worked on the land, and that the brother of the testator shall remain on the farm, and be supported so long as he may live; and for the disposition of the property, in the event that Whitmell Newsom should die leaving no lawful issue surviving him. The residue of the estate is given, as expressed in the residuary clause, "upon the same conditions," which words refer to the conditions alluded to in the previous devise to be afterward expressed. The words, "after the payment of all my debts and specified legacies," constitute a substantive and distinct clause, having no reference to the conditions referred to in the devise. They were intended to qualify, in respects other than the conditions Newsom v. Thornton. upon which the devise of the land is made, and to mean something not expressed by the words, "upon the same conditions." Their application to qualify and define the amount of the remainder of the estate, which should pass by the residuary clause — being what may remain after payment of debts and legacies-is the natural and ordinary use and meaning of the words, as collocated in the will. The mere circum The devisee is not the heir of the testator. stance, that he is also the executor, does not suffice to charge lands specifically devised. The will does not specially direct by whom, or how the legacies shall be paid. The duty and liability to pay them devolves on him in his executorial capacity, and not as devisee. As he might have renounced the executorship, without impairing the devises and bequests to him, so he may accept it without incumbering the devised lands with any charge not otherwise imposed by the will. The construction should be the same as if a stranger had been appointed executor, and not varied as a devisee, not being an heir, may or may not accept the appointment. Paxson v. Potts, supra. The will was made in 1855. On examination of all its provisions, it clearly appears that the testator supposed, and made his will on the supposition, that his personal estate was amply sufficient to pay his debts and the specified legacies and to leave a residue, and that there would be no occasion to charge the lands with them. The presumption is that he intended the legacies to be paid out of the same estate from which he had also given specific legacies of personal property, being the fund which is by law primarily, and prima facie exclusively, devoted to such purpose. The testator could not have intended that the pecuniary legacies should be paid at all events, to the impairment of the integrity of a specific devise to one who seems to have been the special and favored object of his bounty. In this connection, the reservation, that the daughter of the testator, and mother of the devisee, shall have the right or privilege to occupy the dwelling and out-houses on the devised lands, during her widowhood or life-time, is significant of the intention of the testator. From the expressions and dispositions of the will and the circumstances apparent on its face, a charge of the pecuniary legacies on the specifically devised lands cannot be implied without disregarding settled rules of presumption and construction. The presump Bass Furnace Company v. Glasscock. tion of an intention that the devisee should take the lands, without such incumbrance or diminution, must prevail. Davis v. Gardner, 2 P. Wms. 187. Decree reversed, and decree will be here rendered dismissing the bill. A master may discharge his servant for public drunkenness and disorderly conduct, although it was only on one occasion, and did not incapacitate the servant or cause him to fail in the performance of his work. A CTION for breach of contract of employment. The opinion states the case. The plaintiff prevailed below. Walden & Son, for appellant. Matthews & Daniel, contra. SOMERVILLE, J. 1. The first portion of the charge given by the court, to which exception is taken, raises the inquiry, under what circumstances an employer is justified in discharging an employee from his service on the ground of drunkenness. The plaintiff was employed by the defendant company to reduce to charcoal, or as expressed by the witness, to "coal" the wood on a tract of land owned by the company, for which he was to be paid wages at the rate of $50 per month. The evidence tends to show that the plaintiff, a short while before his discharge, was drunk on the premises of the defendant, where an iron furnace was in process of operation, about four miles away from "the coaling," as it is called, and while so intoxicated, he there "raised a disturbance, and had a fight with a man." At another time he was seen "drunk, in a wagon with some negro women, going toward the coaling." This is all that is shown by the evidence bearing on this point, no details being given. The court charged the jury, that "the fact that the plaintiff was drunk once, or a number of times, at the furnace or elsewhere, during his employment under the contract, is no evidence against plaintiff's right of recovery, unless drunkenness incapacitated Bass Furnace Company v. Glasscock. and caused the plaintiff to fail in his part of the contract." Is this a correct statement of the law on this subject? To justify an employer in discharging a servant, or employee, the rule, no doubt, is that the servant must have been guilty of con'duct which can be construed to be a breach of some express or implied provision in the contract of service. It seems to be settled, that it is an implied part of every contract of service, that the employee will abstain from habitual drunkenness, or repeated acts of intoxication, during the period of his employment. If he be guilty of this indulgence, his conduct will justify his dismissal. 2 Add. Cont. (Morgan's ed.), § 890; Wise v. Wilson, 1 Car. & K. 662; 2 Pars. Cont. 36 note (f); Gonsolis v. Gearheart, 31 Mo. 585; Huntington v. Cloflin, 10 Bosw. 262. There may be circumstances however under which a single act of drunkenness would warrant a servant's discharge; as for example, in the case of a minister of the gospel, where the act might bring personal reproach, and tend to degrade the moral standard of religion; or of a family physician, where it might result in negligence or malpractice in pharmacy or surgery. Wood on Mast. and Serv., § 111, p. 213. The same act, when committed by a day laborer, in privacy, and when off duty, or on some rare occasion when great temptation was presented, might not be a sufficient excuse for his discharge. The rule is stated by a recent author to be, that intoxication, while in service, is generally a good excuse for discharging a servant, particularly when it is habitual, and interferes with the discharge of his duties, or will be likely to. But it is held, that as to whether it is to be regarded as a proper excuse, depends upon the occasion. Wood on Mast. and Serv., § 3, p. 213. We do not doubt that public drunkenness of any employee, while in the service of his employer, and manifesting itself in boisterous and disorderly conduct, either toward the employer or third persons, is such misconduct as to constitute a violation of the stipulation, implied in every contract of service, that the employee will conduct himself with such decency and politeness of deportment as not to work injury to the business of the employer. This he can do by a single act of drunkenness, which may tend to offend the reasonable prejudices or tastes of the public, or impair their confidence, or render him disagreeable in social or business intercourse. The drunkenness of employees may well deter the patrons of any business establishment from continuing their business intercourse with it, especially when social contact is fre |