Warner v. WillardWarner v. Willard
- Reporters:
- , ,
- Before:
- Granger
This is an amicable suit to obtain a construction оf the will of William Willard. The first clause of the will is as follows :—
“ I give and bequeath to my beloved and faithful wife, Jаne G. Willard, the use and improvement of the reаl estate of which I may die possessed, during her natural life. I also give to her, the said Jane G., all my household furniture of every name and kind.”
The testator then gives to one daughter $2,500; to another $2,000; to his son $2,000 and his gold watch, gold headed cane and wardrobe; and to an adopted son $1,000. Then follows the sixth clause of the will, which is as follows :—
“ All the residue of my estate of whatever name or kind, after pаyment of my debts and funeral charges, I give and bequеath to my wife, Jane G. Willard.”
The residue of the estate of course includes the fee of the real estate, of which only the life use had been given by the first clause and which had not been dispоsed of by any other clause of the will, unless from the whole will we can gather the intent of the testator not to include it.
The defendant contends thаt, taking this clause in connection with the first, it is evident that the testator intended to give his wife only a life usе of the real estate and that this gift of the residue must therefore be regarded as intended to еmbrace only the personal estate. Thе facts are found with regard to the amount of the testator’s personal and real estate, but they throw no light upon this question.
It is difficult to discover any reason why the testator *472should have given his wife а life estate, only, in the first clause of the will, and thе fee of the same real estate by the residuary clause. But the question for us to consider is nоt whj- he did what he did, but simply what has he in fact done. We must look for his intention only in the will itself, and in that he has expressed himself in language free from all ambiguity. He not only speaks of “ all the residue,” but of “ all the rеsidue of my estate of whatever name or kind.” It would hardly be possible for lаnguage to be more comprehensive.
Were the matter left in any doubt, there is a further consideration that would be decisive. If the fee оf the real estate does not pass by the rеsiduary clause, then it is not disposed of, and becomes intestate estate. But there is always а presumption that when a party makes a will hе intends to dispose of all his property, and nоt to die intestate as to any part of it. “ Every intendment is to be made against holding a man to be intestate, who sits down to dispose of the residue of his property.” Booth v. Booth, 4 Ves., 407. To the same effect are Higgins v. Dwen, 100 Ill., 554, 556; Smith v. Smith, 17 Gratt., 268; Irwin v. Zane, 15 W. Virg., 646.
Our conclusion is that the widow toоk the fee of the real estate, and the Superior Court is so advised.
in this opinion the other judges concurred.