Emery v. Union Society

Wills. Devises. When a testator devises real estate and subsequently conveys it to a person other than the devisee, the devise thereby becomes impliedly revoked. In such case, the proceeds of the sale, in the absence of any specific provision in the will therefor, do not go to that devisee, or, next of kin, but to the residuary legatee or devisee.

On report. Bill in equity by the executor of the will of William F. Howland, late of Eden, Maine, to obtain a construction of the will, against the Union Society of Savannah, Ga., and Anna Marion Wirgman, John Myers Durborrow, Richard Newton Durborrow and Savannah Struthers, all of Philadelphia. The devise was adeemed. 1 Redf. Wills, *339, *336; 1 Jarman, Wills, (5 Am. ed.) 309; 1 Williams, Executors, 241; Powell, Devises (3 Am. ed.) 376-7 ; 1 Toller, Executors, (3 Am. ed.) 19, 20, 22; Carter v. Thomas, 4 Maine, 341; Hawes v. Humphrey, 9 Pick. 350; Ward v. Ward, 15 Pick. 511; Wiggin v. Swett, 6 Met. 194; Webster v. Webster, 105 Mass. 538 ; Herrington v. Budd, 5 Denio. 321; Walton v Walton, 7 Johns. Ch. 258 ; Arthur v. Arthur, 10 Barb. 9 ; Skerrett v. Burd, 1 Wharton, 246 ; Brush v. Brush, 11 Ohio, 287 ; Bowen V. Johnson, 6 Ind. 110 (61 Am. Dec. 110) ; Epps v. Dean, 28 Ga. 533 ; WeZis v. Wells, 35 Miss. 638 ; Tannery. Van Bibber, 2 Dur. (Ky.) 550 ; _AcZa»¿s v. Winne, 7 Paige, 97 : Philson v. Moore, 23 Hun. 152; Beck v. McGillis, 9 Barb. 35; Bose v. Bose, 7 Barb. 174; Arthur v, Arthur, 10 Barb. 9; Brown v. Brown, 16 Barb. 569. The proceeds of the sale go to the residuary fund. Farrar v. Winterton, 5 Beav. 1; Moor v. Baisbeck, 12 Sim. 123; Ex parte Hawkins, 13 Sim. 569 ; Cling an v. Micheltree, 31 Pa. St. 25; 1 Jarman, Wills, 326; Donohoo v. Lea, 1 Swan. (Tenn.) 199 (55 Am. Dec. 725) ; Bosley v. Bosley, 14 How. 391 ; Atwood y. Weems, 99 U. S. 183 ; Ommamy v. Butcher, 1 Turn, and Russ. 260; 2 Williams^ Executors, 1565 ; Webster v. Webster, 105 Mass. 538 ; Drew v. Wakefield, 54 Maine, 291 ; Thayer v. Wellington, 9 Allen, 283; 1 Redfield, Wills, 336; 2 Redfield, Wills, 174; Hayden v. Stoughton, 5 Pick. 537 ; Adams v. Winne, supra; Arthur v. Arthur, supra; Beck v. McGillis, supra; Bose v. Bose, supra; King v. Strong, 9 Paige, 94; James v. James, 4 Paige, 114; Philson v. Moore, éupra; Kennell v. Abbott, 4 Ves, 802; Birch v. Baker, Mosely, 374; Gale v. (Taie, 21 Beav. 349; Frazier v. Frazier 2 Leigh, 642; Clark v. Packard, 9 Gray, 417; Prop’rs of Church v. Grant, 3 Gray, 142. Intention of testator cannot overcome fixed rules of law. See Bosley v. Bosley, and two oases last cited above, also Smith v. Bell, 6 Pet. 68 ; Bamsdell v. Bamsdell, 21 Maine, 288 ; Fisk v. Keene, 35 Maine, 349; Malcolm v. Malcolm, 3 Cush. 472 ; Warren v. Webb, 68 Maine, 135; Hash v. Simpson, 78 Maine, 142; Powell, Devises, 376. Toller, Executors, 21; Brown v. Brown, supra; 4 Kent’s, Com. *528 ; Thomas v. Carter, 4 Maine, 341. The laws of Maine, control, Gilman v. Gilman, 52 Maine, 165. As was said in Morey v. Solder, in an opinion announced by the New Hampshire Supreme Court, in March, 1886, and cited in the Albany Law Journal for July 10th, 1886 : "In this state many of the conditions upon which the doctrine of implied revocation was formerly based in England no longer exist. Under this alteration of the common law any form of words showing the intent of the testator to devise all the estate which he should own at the time of his decease, passes all his property, real and personal, whether owned at the time of making the will or acquired afterward. If a testator after executing his will makes a conveyance of lands specifically devised, and subsequently becoming re-vested with the title, is the owner of the same land at his decease, it passes by the will as if there had been no alienation.” In 1 Redfield on Wills, 338, it is said : "According to the present English statute, and those of most of the American states, it is only necessary that the will be so expressed, in order to operate upon such estate as the testator may have at his decease, and it is not material, even as to real estate, that he should be seized of the same estate at the time of executing the will, since the instrument will operate upon any estate, coming fairly within its terms, in which the testator is seized of a disposable interest at the time of his death.” Now we submit that under our present statutes and under the established rules for the construction of wills, in which the great object sought to be attained is to arrive at the intention expressed by the testator, it would not be a forced construction of this will to hold that whatever interest in real estate in Savannah, the testator had at the date of his death by virtue of the mortgage, as well as the debt which said mortgage was given to secure, passed under the devise to the nephews and nieces, for whom the trustee was directed to reserve such real estate unless a strong necessity to sell it should arise, and this construction is much more reasonable and more in accordance with the testator’s intention, than one which would substantially exclude the heirs from the benefit of their inheritance, and after very trifling bequests give the whole estate under the last clause in the will to the Union Society of Savannah. See Dunlap v. Dunlap, 74 Maine, 402. A testator devised to his daughter H. one-third part of a certain farm, "but- if my executor shall think best to sell said farm, then I give to her one-third part of the proceeds of the sale of said farm to his daughter S. one-third part of the same farm, "or if said farm is sold, then one-third part of the proceeds, of the sale of said farm and after a devise to his daughter A. in the same words as to S. added, "And I hereby authorize my executor to sell and pass deeds to convey said farm in such manner as he may think best for all concerned; and divide the proceeds as above directed ; but if he should think best not to sell the same then they may take the farm.” After the making of his will, the testator in his lifetime sold the farm. Held, that S. was entitled to one-third of the proceeds of such sale. Olarlc v. Packard, 9 Gray, 417. If it be held in this state, Drew v. Wakefield, 54 Maine, 296, that the distinction has been abolished between a lapsed devise of real estate, and a lapsed legacy of personal estate, and that both^now pass by the residuary clause, the same is not true of the law of Georgia. See 1 Jarman on Wills, p. 635, note 8, in which it is said, "In the absence of all statutory provisions the rule of the common law has been adopted in many states, that void and lapsed legacies go to the residuary legatee, but void and lapsed devises to the heir,” citing Hughes v. Allen, 31 Georgia, 489 ; Wird v. Mitchell, 32 Georgia, 623; Thweatt v. Redd, 50 Georgia, 181. Undoubtedly if it had been the intention of the testator for the bequest and devise to Anna Marion Wirgman et als. or for the bequest and devise to the Union Society, to take effect upon the death of the testator’s wife at any time, the effect of her death in the lifetime of the testator would simply be to accelerate the enjoyment of such legacies and devises by removiug the prior life-estate out of the way, but in each of these case we submit that the whole context and purport of the will and the conduct of the testator, so far as it appears as a fact in the present case, tend to show that he did not intend either of these legacies or devises to take effect at all except upon the death of his widow or her re-marriage. The event of her death and of her re-marriage are referred to the same period of time, namely, that succeeding his own decease. See Tucker v. Tucker, 5 N. Y., '420; Randjield v. Randjield, 2 De Gex & J. 59. The argument of the learned counsel for the Union Society wholly misconceives the position which we take in this ease. We claim no revocation of the will. We do not deny that the will is to take effect precisely according to the intent expressed in it; nor do we claim that there is any rule of law which prevents the gift over to the Uuion Society from taking effect in any event in which the testator so designed. If the meaning of this will is that the gift over to the Union Society is to be effective in the event of the decease of the testator’s wife in his own life, as well as in the event of her decease after his own death, we do not urge that there is any technical rule of law which prevents that result. We do not deny anything stated by the court in the case cited on the other side, Morton v. Barrett, 22 Maine, 257. The gift over to the Union Society is just as valid in the event ( which happened) of the death of the wife before, as it would have been in the event of the death of the wife after, the testator’s own decease, provided that is the testator’s intent expressed in the will. What we do .denj7 is, that the will so intends, and we do not see how a doubt arises upon the proposition that the testator was framing the trust in this residuary clause solely with reference to his own death during the lifetime of his wife, and provided only for that event. It is the aim of all our highest courts — and of none is this more true than of this court —• to adopt that construction which reproduces from the will the real intent which the testator himself expressed in it, and for this purpose to. consider the man himself, his relations to others, the position in which he stood, the circumstances surrounding him, and to declare what such a man, so placed, meant by the language he used. We appeal with confidence to all general rules of construction as $n our favor in this case, but general rules hold only when, special facts do not control them, and we respectfully submit that the more carefully the precise language of this will is studied in the light of the situation itself and of the testator’s manifest feeling and desire, the stronger the conviction becomes that the-will intended what the man himself intended, and is as far from attempting the wrong which the Union Society would impute to-ft, as the testator would be, if he could now declare his intention to the court. Compare Oorbyn v. French, 4 Yesey, 435;: Stewart v. Jones, 3 De Gex & J. 532 ; Tilson v. Jones, 1 Eussell & Mylne, 553; Oowley v. Knapp, 13 Yroom, 302-3 ;; Hand-field v. Handheld, 2 De Gex & J. 57 ; JJash v. Simpson,. 78 Maine, 147.