211 P.2d 399 | Idaho | 1949
The testator by the plain provisions of his will only disposed of his part of the community property and thereby confined the residue referred to in paragraph 11 thereof to that portion remaining after specific bequests were paid. 69 C.J. p. 422; Davis v. Davis,
The testator, having restricted the residuary clause to the balance of his half of the community property, died intestate as to the other half of the community property which he subsequently inherited from his wife. Sledd v. Rickman,
The appeal involves the construction of certain provisions of said will. Paragraph 2 reads: "I give, devise and bequeath to my beloved wife Bertha Hartwig an undivided one half interest in my estate, being her community interest therein."
Paragraphs 3, 4, 5 and 6 give $1.00 each to four of the children. Paragraphs 7, 8, 9 and 10 give $100 each to four of his sons named therein. Paragraph 11 reads: "All the rest, residue and remainder of my said estate, I give, devise and bequeath to my daughter Lydia Warren, of Emmet —, Idaho, and my son Frank Hartwig, of Klamath Falls, Oregon, to have and to hold, share and share alike."
Appellants contend the will itself discloses the testator was dealing only with his half of the community property; that he restricted the disposition of his property to his own half interest therein; that he did not anticipate the death of his wife prior to his; that, as to the half interest which he later acquired upon his wife's death, he died intestate; and that the residuary clause in the will referred only to his own half interest in the community property which would be left after payment of the specific bequests contained in paragraphs 3 to 10, inclusive.
It does not appear to be contended by appellants that the provision of paragraph 2 of the will constitutes a bequest. It is merely a recognition by the testator that under the community property law, the wife owned an undivided one-half interest in the community property.
Under the common law, personal property acquired after the making of a will, passes under the will unless a manifest intention to the contrary is disclosed by the will. After-acquired real estate, under common law, did not pass under a will. This matter is discussed in 57 Am.Jur., pp. 796-797 in pars. 1210-1211, as follows: *80
"It has always been agreed that, as to personal property, a will speaks as of the death of the testator; both at common law and under modern statutes personal property acquired by the testator after the execution of his will passes thereunder, unless a contrary intention clearly appears. A general residuary clause, for example, or a general disposition of `all my personal property' or `all my personal estate' will operate to pass any personal property acquired by the testator after the execution of his will. Even specific bequests have sometimes been held to carry after-acquired property. Of course, the will may contain language indicating the testator's intention, which will control the result."
Our Section 14-325, I.C., provides that after-acquired real estate passes under a will the same as personal property and reads as follows: "Any estate, right or interest in lands, acquired by the testator after the making of his will, passes thereby and in like manner as if the title thereto was vested in him at the time of making the will, unless the contrary manifestly appears by the will to have been the intention of the testator. Every will made in express terms devising, or in any other terms denoting the intent of the testator to devise all the real estate of such testator, passes all the real estate which such testator was entitled to devise at the time of his decease."
It thus appears that all after-acquired property would pass under the will of the testator unless a contrary intention clearly appears in the will.
Appellants contend that paragraph 2 of the will, the use of the words "my estate" *81 therein and of the words "my said estate" in the residuary clause, show that the testator was only attempting to deal with and dispose of his one-half interest in the community property; and that the language used in the will manifests the intention of the testator to restrict his testamentary disposition to one-half the community property.
It may be conceded that at the time the will was drawn, the testator had in mind that his estate consisted, at that time, of only his undivided one-half interest in the property. Ordinarily a testator cannot know at time of executing his will of what his property will consist at time of death. There may be losses or accretions during the interval. The general term "estate" when used in a will, unless otherwise restricted, means all of testator's property left after death. 57 Am.Jur. 886. We fail to find anything in the will in question to indicate that the testator by the use of the term "my estate" in paragraph 2 and "my said estate" in the residuary clause, did not intend to include all his then property plus accretions. The accretion to his estate by his inheritance from the wife, occupies the same status as would an accretion by inheritance from some other person or resulting from a business transaction.
The nominal gifts to eight of the children tend to show an intention to virtually disinherit such children. The residuary bequest practically comprises the entire estate. There is nothing in the will manifesting an intention on the part of the testator to supersede the common law rule that personal property, and thestatute that real estate, acquired after the execution of the will, passes thereunder.
The residuary clause in the will uses the words, "all the rest, residue and remainder of my said estate." This is a general and not a restricted residuary clause. It is not restricted to the remainder of a particular fund or particular species of property. The question of a lapsed legacy is not here involved. The language is sufficient to pass not only the estate in existence at the time of the execution of the will, but all accretions thereto. We quote from 57 Am.Jur. 947, par. 1415, as follows:
"Debts and legacies having been provided for, however, the operation of a general residuary clause to include, in the absence of any contrary testatorial intention, all species of property owned by the testator at the time of his death and otherwise undisposed of by the will, whether or not the testator was aware of such ownership, is recognized in many decisions.
"A `general' residuary clause is one which employs some broad term such as `property' or `estate' and hence is sufficient to carry all classes and kinds of property, * * *"
A general residuary clause passes all property owned by the testator at the time *82 of his death not otherwise disposed of by the will unless a contrary intention appears in the will. 57 Am.Jur. 948-949, pars. 1417-1418.
In construing a will, the presumption is against partial intestacy. In 57 Am.Jur. 754-756, par. 1158, it is said:
"Where a will has been executed, the reasonable and natural presumption is that the testator intends to dispose of his entire estate. There is no presumption of an intention to die intestate as to any part of his estate when the words used by the testator will clearly carry the whole. Therefore, in the construction of doubtful clauses in a will, that interpretation is to be adopted, if possible, which avoids a partial intestacy, unless it clearly appears that the testator intended to die intestate as to part of his property. The generally accepted construction of the word `estate' as including both realty and personalty, for example, receives strong support from the presumption against partial intestacy. An intestacy is a dernier resort in the construction of wills, and the abhorrence of courts to intestacy under a will has been likened to the abhorrence of nature to a vacuum.
"The presumption against an intestacy is particularly strongwhere the subject of the gift is the residuary estate." (Emphasis supplied.)
The case of In re Williamson's Estate,
In accordance with the foregoing views, the judgment of the trial court is affirmed. Costs awarded to respondents.
HOLDEN, C.J., and GIVENS, TAYLOR and KEETON, JJ., concur. *83