CHAPTER IX. CONSTRUCTION OF WILLS. SECTION 1. FROM WHAT TIME THE WILL IS REGARDED AS SPEAKING. 1. The nature of the act refers its language to the period when it comes in force. 2, and n. 2. That is the prevailing rule now, both here and in England. 3, and n. 4. Language referring expressly to the present time must receive that construction. 4. But, many times, words in the present tense refer to the time of testator's de cease. 5. Provisions in regard to the payment of debts will be so construed. 6. So also words defining the disposition of the residuum of an estate. 7. Specific gifts of stock, or other personalty, have reference to the date of the will. 8. The same rule of construction obtains in regard to the objects of testator's bounty. 9. Devise or bequest to relative, if in existence, is personal; otherwise not. 10. Provision for servants is limited to those who are alive at the date of the will. 11. General devises, and bequests, include all which testator can give at the time. 12. The same rule of construction extended to classes of persons. All answering the description, at death of testator, take. 13. Devise of all testator's estate in particular place. 14. General powers of appointment, executed, by prior will, but not so of revocation. 15, and n. 30. After-acquired real estate not devisable, except by statutory provisions. WHAT ESTATES ARE DEVISABLE. 16. All estates where there is any present interests are devisable. 17. All vested interests, whether liable to be defeated by future contingencies or not, are devisable. 18. This rule is recognized as existing in Massachusetts by Wilde, J., and as extending to contingent remainders and executory devises. n. 31. Blackstone's and Kent's comments upon the same question. 19. Estates of which the testator has been disseized, devisable. 20. The construction under the present English statute. 21. Bequest to "heirs at law" means such as are heirs at decease of testator. § 30. 1. THE very nature of the testamentary act, which is expected to take effect only at the time of the decease of the testator, presupposes, that so far as facts and circumstances are susceptible of anticipation by him, so as to enable him to place himself in the position he will then be, relatively to his property and his obligations to his family, that he will have used the language of his will, with reference more particularly to that period.1 2. In the case last referred to, in both of which the opinions were delivered by Mr. Justice Ellsworth, the subject is presented in a very clear light. In the first of these cases, the learned judge said: "A will speaks from the death of the testator, and not from its date, unless its language, by fair construction, indicates the contrary intention." "Hence a devise of personal property generally carries all the testator had at the time of his death." And it may be added, the same rule now prevails generally in this country as to real estate.2 1 Canfield v. Bostwick, 21 Conn. 550; Gold v. Judson, 21 Conn. 616. 2 It has been already stated, that the present English statute expressly declares, that the language of wills shall be construed as of the date of the decease of the testator, unless the contrary appear to have been the intention of the testator, and that the will shall operate upon all the estate of the testator, real and personal, at the time of his decease, so far as its terms are applicable, or unless the intention of the testator appear to have been otherwise. And this rule, which is but the embodiment, in the statute, of the general sense of all minds upon the subject, has generally been adopted in the American states, either by statute or construction. The rule in the English courts is thus declared in the late cases. The general presumption is, that the testator expects the words of his will to speak from his death. A different construction will not therefore be admitted, unless very obviously intended. Goodlad v. Burnett, 1 Kay & Johns. 341; Bullock v. Bennett, id. 315. 3. The exceptions to the general rule thus defined, as in most cases, will be the most difficult of determination. And here we prefer to use the language of that experienced magistrate, from whom we have already quoted: "Whenever a testator refers to an actually existing state of things, his language should be held as referring to the date of the will, and not to his death, as this is then a prospective event. Such, it is clear, is the construction of the word 'now.' Thus, to the descendants now living of a person, means those living at the date of the will." 4 'Gold v. Judson, 21 Conn. 616, 622. Crossly v. Clare, Amb. 397; Allsoul's College v. Coddrington, 1 Peere Wms. 597. Here the testator gave a library of books, now in the custody of B., to the college, and afterwards buys more books, which he places in the same library, and it was held, the after-bought books did pass under the bequest. See also Abney v. Miller, 2 Atk. 593, 597; Blundell v. Dunn, cited in 1 Mad. 433; Attorney-General v. Bury, 1 Eq. Ca. Ab. 201, pl. 12; Rowland v. Gorsuch, 2 Cox, 187; James v. Richardson, 1 T. Jones, 99; 1 Eq. Ca. Ab. 214, pl. 11. The same principles are maintained in Cole v. Scott, 16 Simons, 259, 1 McN. & Gord. 518. See also, Douglas v. Douglas, Kay, 400; Hepburn v. Skirving, 4 Jur. N. s. 651; Goodfellow v. Goodfellow, 18 Beav. 361. In the case of Cole v. Scott, Lord Chancellor Cottenham said, when the case was before him on appeal, with reference to the use of the word "now," in the description of the estate devised: "It appears to me just the same as if the testator had said, 'All the freehold and leasehold estates of which I am, on this 29th day of April, 1843, seized and entitled.' If these had been the words, there could not, of course, have been a doubt; but the words used are in effect the same." But his lordship says, if the will had had no date, the word "now" must have been referred to the death of the testator. But these views have not been regarded as entirely satisfactory, even under the English statute, 1 Vict. ch. 26, and they would be less so, under the more general provisions of the statutes of most of the American states. To avoid all subsequent questions, as suggested by Mr. Jarman, if the testator desires to limit the operation of a bequest to the time of making, he should adopt some unequivocal form of expression, having reference, in terms, to the date of the will, since all mere general forms of expression, naturally keep pace with the ambulatory character of the instrument, and are just as applicable, at the time of the decease of the testator, and in some respect more so, than at any antecedent period. 4. But there are many cases where language, in the present tense, must be applied to the period of the decease of the testator, as in the case of a will, of all the property of which "I am possessed," or "all I am possessed of." 5 5. And provisions in the will, in regard to the payment of the testator's debts, have been generally construed as having reference to the period of the testator's death, and the words, "all the debts I have contracted," it has been held, must be construed, "shall contract." 6 6. And language, naturally defining the present residuum of an estate, has generally been held to pass the residuum, at the date of the testator's decease, as where it is said in the will," I may have forgot many things, such as money due me from government, &c., if such there is, it is to be thrown into the lump for the benefit of the legatees." Lord Chancellor Eldon here said: "The courts have held, whether on satisfactory grounds or not, is another question, that where a person gives all his property, it shows that he did not mean to die intestate, and not meaning to die intestate, as to what he had at the time of making his will, they have inferred that he did not mean to die intestate, as to what he should have at the time of his death. This rule has sometimes operated with great hardship, and directly contrary to the intention of the party; but notwithstanding that, it has been allowed to prevail." 7. Specific gifts, whether of stock or other personal esstate, have been construed to have reference to the property of the testator, then in existence, and if the testator dispose of the article described, either in whole or in part, and subsequently 'Bland v. Lamb, 2 J. & W. 399, 403. Provisions in regard to children, whether of the testator or another, although expressed in the present tense, have generally been construed, to include those born after the date of the will, and so the expression, "child he hath by his wife," has been held to include those antecedently in existence. Ringrove v. Bramam, 2 Cox, 384; 1 Jarman, 300. acquire more of the same description, the legacy will nevertheless fail, as to all except the portion not disposed of. But general legacies of a particular description, as a certain number of shares of a particular stock, do not in this respect follow the same rule in regard to change of the estate, as specific legacies.9 And we have already seen that renewals of leasehold estates do not pass under a specific devise of the former leasehold interest, it being regarded as altogether a distinct estate.10 But a devise of leaseholds, "for all the residue of the term and interest, I shall have to come therein, at my decease," has been held to include the right of renewal." And so long as the equitable title to the leasehold interest remains in the testator, at the time of his decease, it will pass under the will, notwithstanding the legal estate may have been transferred.12 8. The same rule of construction, as to words used in wills, descriptive of the objects of the testator's bounty, has generally prevailed, although with considerable hesitation, in many in Cockran v. Cockran, 14 Simons, 248; Hayes v. Hayes, 1 Keen. 97; Wood, V. C., in Goodlad v. Burnett, 1 Kay & J. 347; Wheeler v. Thomas, 7 Jur N. 8. 599. Robinson v. Addison, 2 Beav. 515. 10 Rudstone v. Anderson, 2 Ves. Sen. 418; Hone v. Medcraft, 1 Br. C. C. 261; Coppin v. Fernyhough, 2 Br. C. C. 291. But very slight circumstances will be seized hold of by courts, to give an equitable construction to such specific bequests, as where the property is given in trust, it has been held to include the right of renewal of the lease. Carte v. Carte, 3 Atk. 174. And the same principle has been extended to the case of a lease, with covenant for perpetual renewal. Poole v. Coates, 2 D. & War. 493; 1 Jarman, 301. " James v. Dean, 11 Vesey, 383, 15 Vesey, 236; Churchman v. Ireland, 1 Russ. & My. 250. In this case, Lord Brougham, Chancellor, held, that even under the statute of wills, and the statute of frauds, anterior to the present English statute of wills, a devise and bequest of "all my estate and effects, both real and personal, which I shall die possessed of," extends to land purchased by the testator, after the date of the will; and this case virtually overrules that of Back v. Kett, Jac. 534. But it is not so declared, by his Lordship, in terms. 12 Woodhouse v. Okill, 8 Simons, 115. |