Atkins v. Best, 27 App. D.C. 148

Atkins v. Best

27 App. D.C. 148 | D.C. Cir. | 1906

Mr. Chief Justice Shepard

delivered the opinion of the Court.

1. We are of the opinion tthat the extrinsic circumstances relied on in the defendant’s answer, which consist of the recital of the interests in certain lands vested in her by the will of Abraham H. Best, of the transactions between her and Kate Best Atkins and husband concerning the sale of certain of those interests at their request and for their advantage, of the advances of money to the testatrix, and of the submission of the draft of Kate Best Atkin’s will to defendant for her approval, before its execution, cannot be considered as aids in the construction of the last-named will under which the defendant claims an estate in fee in the lands in controversy.

Evidence of such extrinsic circumstances as the testator’s relation to persons, or the amount, character, and conditions of his estate, is sometimes admissible to explain ambiguities of description in his will, but never to determine the construction or the extent of the devises therein contained. King v. Ackerman, 2 Black, 408, 418, 17 L. ed. 292, 298; Barber v. Pittsburg, Ft. W. & C. R. Co. 166 U. S. 83, 109, 41 L. ed. 925, 936, 17 Sup. Ct. Rep. 488; McAleer v. Schneider, 2 App. D. C. 461, 467.

The circumstance, however, that the will to be construed was drawn by the testatrix, evidently an unskilled person, may be given limited weight in view of what has been said by the Supreme Court of the United States in respect of the rigid adherence to precedents, and the strict application of rules of. con*153struction to wills where a testator, unlearned in the law, has acted as his own scrivener. Abbott v. Essex Co. 18 How. 202, 213, 15 L. ed. 352, 355; McCaffrey v. Manogue, 196 U. S. 563, 571, 49 L. ed. 600, 603, 25 Sup. Ct. Rep. 319.

2. The ancient rule prevailed in the District of Columbia when this will took effect, that, where a devise contains no words of limitation or description of the extent of the estate passed, the devisee takes for life only, unless from an examination of the language of the entire will it shall appear with reasonable certainty that the real intention of the testator was to create a greater estate. Wright v. Denn, 10 Wheat. 204, 227, 6 L. ed. 303, 309; McAleer v. Schneider, supra.

This rule reflected the policy of the English law, which favored the heir, and would not suffer him to be disinherited save upon the plain expression of that intention by unmistakably conferring the whole of the estate upon another. The policy of the law has undergone a change in this country, at least, and we have arrived at a time “when the rights of heirs are not so insistent, and the rule in their favor lingers, where it lingers at all, almost an anachronism; when ownership of real property is usually in fee, and when men’s thoughts and speech and dealings are with the fee.” McCaffrey v. Manogue, supra. Consequently, and for the reason that the real intentions of testators, who commonly act as their own scrivenors, are believed to have been very often thwarted by the strict application of this artificial rule, the tendency of the latest decisions, in those jurisdictions where the rule has not been abolished by statute, seems to be to search the entire will closely for the sufficient indication of an intention that will rescue it from its operation.

The present will, both in the particular devise and in its general terms, bears resemblance to that recently construed by the Supreme Court of the United States, and held to pass an estate in fee, in the case of McCaffrey v. Manogue, supra.

As we have seen, the will was drawn by the testatrix herself without legal advice or assistance. As in the will construed in McCaffrey v. Manogue, the testatrix evidently intended to dis*154pose of her entire estate, for while there is no introductory clause expressing that intention, there is no residuary clause indicating that less was intended to be passed; her two heirs at law are named among her devisees and legatees. Each special devise is without words of limitation, but the immediately succeeding and last sentence of the paragraph devising the land in controversy to the appellee, gives her the income of the Salona (Pennsylvania) farm “during her life.” This is a strong circumstance, indicating that her intention was to create the greater estate in the former. Then, immediately thereafter, the testatrix devises the Salona farm to her two children in general terms, with no words of limitation whatever, and without mention of the life estate therein previously devised to the appellee. It seems evident that she intended them to take the remainder thereof in fee. See cases cited in Young v. Norris Peters Co. ante, 140. Tested by the doctrine enounced in McCaffrey v. Manogue, supra, our conclusion is that the testatrix intended to pass the fee of the property in controversy to the appellee. The decree to that effect was right, and will therefore be affirmed, with costs, but without prejudice to the assertion hereafter, on the part of the appellants, of their right to recover such sums as they may have advanced in payment of proper charges against the said estate. It is so ordered. Affirmed.