Brown v. Wells
Brown v. Wells
Opinion of the Court
delivered the opinion of the Court:
We first will dispose of the contention of appellee (not determined by the court below), that the alleged declarations of the testator at the time of the execution of this will may he taken into consideration to determine the meaning of the language used in the will itself. Clearly, under every rule of construction, such declarations may not be considered in the circumstances here disclosed. While evidence of such extrinsic circumstances as the testator’s relations to persons, or the amount, character, and condition of his estate, sometimes is admissible to explain ambiguities of description, it never is suffered to enlarge or diminish the estate devised. Atkins v. Best, 27 App. D. C. 148; Barber v. Pittsburgh, Ft. W. & C. R. Co. 166 U. S. 83, 41 L. ed. 925, 17 Sup. Ct. Rep. 488. It always is presumed that a testator used the words in which he expressed himself according to their strict and primary acceptation, “unless, from the context of the will,” it appears that he used them in a different sense, when they wdll be construed as from the will itself it is apparent he intended them to be construed. Crenshaw v. McCormick, 19 App. D. C. 494. In that case it was pointed out that as the statute requires that a will shall be in -writing and attested by witnesses, such an instrument cannot be made effectual as a will by means wholly independent of the' attested writing. The court said: “The will must be corn
What, therefore, was the intent of the testator, as gathered from the langmage employed in the will itself ? Bid he intend to vest in his niece nothing more than a life interest in this real estate and die intestate as to the reversion, or did he intend by clause 4 to vest in her' at least a life estate and by the residuary clause the remainder in fee, providing that could be done consistently with the carrying out of the other provisions of the will ? By adopting the latter view, full force and effect will be given to the actual language used in the will, and as well to the rule' that, where a testator makes a general devise of his real estate by a residuary clause it will be presumed that he intended to dispose of such property to the full extent of his capacity. Galloway v. Galloway, 32 App. D. C. 77; Taylor v. Leesnitzer, 37 App. D. C. 356; and English v. Cooper, 183 Ill. 203, 55 N. E. 687.
While we attach no importance to the striking from the bill the averment to the effect that the testator left no real estate other than that mentioned in clause 4 of the will, for the reason that the residuary clause embraces all the residue of his estate, “real, personal or mixed” (Emery v. Haven, 67 N. H. 503, 35 Atl. 940), it is strange that appellee, fourteen years after the death of the testator, his uncle, should have been in ignorance of the existence of other real estate, for of course it must be presumed that had he known of other real estate he would have mentioned it in his bill.
Again, turning to the provisions of this will we find that the testator evidently had very carefully considered the relative claims upon him of those whom he desired to remember. Each of the heirs at law and relatives mentioned in the bill was the recipient of his bounty, — none was forgotten. He left twice as much to the appellee as to his direct heir,-the appellee’s father, as he had a right to do. By clause 4, for reasons satisfactory to him, he insured to his niece, Cecilia Hurxthal, a life interest in the only real estate which, so far as appears, he owned. To her daughter, his great-niece, he left twice as much as to his
We agree with the learned trial justice that the allegation in the bill as to the so-called acquiescence by the parties in the construction placed upon the will by the appellee has no force, because it is not alleged that anyone has changed his position in virtue thereof, either by acting or failing to act.
The decree must be reversed, with costs, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.
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- Wills; Evidence; Declaration; Estoppel; Cloud on Title. 1. While evidence of such extrinsic circumstances as the testator’s relations to persons, or the amount, character, and condition of his estate, sometimes is admissible, in a suit for the construction of his will, to explain ambiguities of description, it is never suffered to enlarge or diminish the estate devised. (Following Atkins v. Best, 27 App. D. C. 148.) Accordingly, in such a suit, evidence of declarations by the testator at the time he executed his will, that he intended to die intestate as to the reversion after the termination of the life estate created by his will, having been advised by its draftsman that such was the effect of the language used, is inadmissible. 2. It is always presumed that the testator used the words in which he expressed himself according to their strict and primary acceptation, unless, from the context of the will, it appears that he used them in a different sense, in which ease they will be construed as from the will itself it is apparent he intended them to be construed. (Following Crenshaw v. McCormick, 19 App. D. C. 494.) 3. Where a testator makes a general devise of his real estate by a residuary clause, it will be presumed that he intended to dispose of such property to the full extent of his capacity. (Following Galloway v. Galloway, 32 App. D. C. 77, and Taylor v. Leesnitzer, 37 App. D. C. 356.) 4. The averment in a bill in equity for the construction of a will and the removal of an alleged cloud from title created by a conveyance in fee of real estate, in which it is claimed the grantor had only a life estate under the will, that the parties interested acquiesced for many years in a construction of the will giving such grantor only a life estate, has no force where it is not alleged that any one had changed his position by virtue thereof either by acting or failing to act. 5. Where a testator, after making specific pecuniary bequests to a nephew and a brother, gave the rents and profits of his real estate to a niece for life, appointing a trustee to take possession of the real estate and pay her the net rents and profits, and then, after making further specific pecuniary bequests and providing for the erection of a monument on his grave at a specified cost, provided that “after the foregoing shall have fully carried out and settled, I devise and bequeath the residue of my estate, real, personal, or mixed wherever the same may be found, and which I may die seised of, unto” said niece, and it appeared that tl personal estate was sufficient to pay all legacies and other charges, it was held, on a bill in equity by one of the heirs at law to construe the will and remove an alleged cloud on title created by the conveyance in fee of the real estate by the niece, that the niece took a fee in the real estate, and not a life estate, and the bill was dismissed.