Crenshaw v. McCormick
1902 U.S. App. LEXIS 5409
D.C. Cir.
1902
Check Treatment
Mr. Chief Justice Alvey

delivered the opinion of the Court:

As we have stated, there is no contention or pretense on the part of the complainants that the real estate in controversy passed or was affected by the codicil made to the will of Mrs. Malison. The single question, therefore, is, whether the real estate in controversy, having been acquired by the testatrix after the making of her will, passed by the residuary clause thereof, upon the proper construction of that clause, in accordance with the terms of the act of Congress of January 18, 1887 (24 Stat. 361, Ch. 25, Sec. 2). By that act it is provided, that —

“Any will hereafter executed, devising real estate in the District of Columbia, from which it shall appear that it was the intention of the testator to devise property acquired after the execution of the will, shall be deemed, taken, and held to operate as a valid devise of all such property.” This act simply conferred power upon the testator to dispose of all the real estate of which he might die seized, provided he made his will sufficiently expressive of an intention to do so.

"What is most relied upon by the appellants to support their contention, that it was the intention of the testatrix in this case that all the real estate that she might acquire after the execution of the will, or of which she might be *500seized at the time of her death, should pass by the will, is the fact that the devise under which the appellants claim is contained in the residuary clause of the will. But if that contention were good and sufficient, all residuary clauses would have the effect of passing all after-acquired real estate. The terms of the residuary clause in this will are not materially different from those employed in a majority of wills containing residuary clauses. The testatrix does not say in this clause of her will, that she devised thereby all the rest and residue of her estate of which she might die seized and possessed. In seeking the intention of the testatrix from the terms she has employed in the residuary clause of 'her will, the question is, what is meant, by the terms, “ I give, devise and bequeath all the rest and residue of my estate, real and personal? ” These are terms most generally employed in residuary clauses of wills. As to the personal estate, by the principles of the common law, those terms pass all the otherwise undisposed of personal estate of which the testator may be possessed at the time of his death; but as to the real estate, by the well settled principles of the common law, those terms, if not aided and explained from other parts of the will, simply mean and are presumed to be intended to refer to the rest and residue of the real estate owned by the testator at the time of the' execution of the will. Indeed, according to the common law of England, and under the statute of wills of Hen. 8, and down to the wills act of 1 Viet. Ch. 26, a will was regarded by the law as being in the nature of a conveyance, and therefore no peison could dispose of any real estate by will, in which he had not, at the time of the execution of the will, a legal or equitable estate. Hnder this rule, after-acquired real estate could not pass by the will. When this rule was changed by statute, it was made necessary that the intention of the testator should clearly appear from the words or context of the will.

The rule is clearly stated by Mr. Justice Washington, speaking for the Supreme Court of the Hnited States, in the case of Smith v. Edrington, 8 Cranch, 66, where the devise *501was, “ I bequeath the whole of my property,” and the statute of Virginia conferred power upon any person to devise by will any real estate which he might have at the time of his death. In that case the learned justice said: “ The rule in England as well as in Virginia at the time this law was passed, was, that a will, as to land, speaks at the date of it, and as to personal estate, at the time of the testator’s death. The law created no new or different rule of construction, but merely gave a power to the testator to devise lands which he might possess, or be entitled to, at the time of his death, if it should be his pleasure to do so. The presumption is that the testator means to confine his bequests to land to which he is then entitled, and this presumption can only be overruled by words clearly showing a contrary intention.” See also Allen v. Allen, 18 How. 385, 392.

The intention required by the act of Congress to be apparent from the terms or general context of the will, must be clear and manifest, and rest on something more certain than conjecture. The court must proceed on known principles and established rules, not on loose conjectural interpretation, nor considering what a person may be imagined to do in the testator’s circumstances. Allen v. Allen, supra; Bradford v. Matthews, 9 App. D. C. 438, 447; McAleer v. Schneider, 2 App. D. C. 461.

The frame of the act of Congress of 1887, requiring the intention of the testator to affirmatively appear from the terms of the will, in order to justify the court in holding that after-acquired lands pass under the will, has been changed by the recent code adopted for this District (Sec. 1628), and the rule enacted by the act of 1887 has been reversed, and made, in substance, to conform to the statutory rule adopted in several of the States, where the English statute of wills (1 Viet. Ch. 26, passed in 1837), in respect to after-acquired real estate, has been followed. By the statute 1 Viet. Ch. 26, it is declared that every will shall be construed, with reference to the real estate of the testator, to speak and take effect as if executed immediately before the death of the testator, unless a contrary indention shall appear by the will. By the *502section of tbe new code referred to, which went into effect on 1st of January, 1902, the rule is declared in these terms: “Any will hereafter executed which shall, by words of general import, devise all the estate or all the real estate of the testator, shall be deemed, taken, and held to operate as a valid devise of any real estate acquired by said testator after the execution of such will, unless it shall appear therefrom that it was not the intention of the testator to devise such after-acquired property.”

Thus the rule has been reversed from the affirmative requirement of evidence from the terms of the will of the intention of the testator to dispose of after-acquired real estate, to the rule of construction whereby the will is made to operate and take effect upon all real estate of the testator owned by him at the time of his death, unless it shall appear from the will that it was not the intention of the testator to devise such after-acquired property.

This change in legislative form of enactment, as to the manifestation of intention of the testator, marks the distinction taken in many of the recent cases decided by the State courts, and upon which the decisions were made to turn; and most of the cases relied upon by the appellants are cases ruled upon this distinction. There are cases, however, founded upon a broader construction of the general power of devise of all the real estate of the testator, and which produce a conflict among the many decisions upon this subject.

It has been suggested, though not very seriously argued, on the part of the appellants, that, though conceded that the clause in the unattested codicil is without effect to pass real estate, yet the terms employed therein might be resorted to as means of ascertaining the intention of the testatrix in the use of the terms employed by her in the residuary clause of her will. There has been no authority cited for the support of this proposition, and we doubt whether any can be found.

There is no uncertainty or doubt as to the meaning of the terms employed in the residuary clause of the will. They *503are plain words, admitting of no doubtful meaning. And in such case, tbe well-settled general principle is, as deduced from all the authorities, that a testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless, from the context of the will, it appears that he has used them in a different sense, in which case the sense in which he thus appears to have used them, will be the sense in which they are to be construed. This would seem to result from the plain requirement of the statute. The statute requires that the will shall be in writing, attested by witnesses, and it would seem not to admit of a question, that such an instrument being per se without effect, cannot by means wholly independent of the attested writing, be made effectual as a will. The will must be complete in itself, and not be dependent upon extrinsic evidence to show what is really intended to be'devised by it. This would seem to be too plain to require the citation of authorities for its support.

The complainants not insisting upon the alleged right to partition under the allegations of the present bill, the decree of the court below must be affirmed; and it is so ordered.

Decree affirmed.