Christie v. . Hawley

Chttboh, Oh. J. The title of the plaintiff to the land in controversy depends upon the construction to be given to the will of Andrew Christie, executed and admitted to probate in 1824. The will, after making four devises of parcels of real estate to his children, respectively, with proper words of inheritance to convey the fee, contains the following clauses : “ I also give and devise to my grandson Andrew Christie, the son of Gilbert Christie, one hundred acres of land to be taken adjoining land above given and devised herein to Gilbert Christie. And the remainder of land belonging to me of the farm conveyed by Rufus Gale and Ruth, his wife, as above stated. I hereby devise to my grandson David Christie, the son of James Christie, and his heirs and assigns.” By a codicil made a few days subsequent to the will, a life estate in the said 100 acres, which is the land in dispute, was devised to the wife. It was admitted on the trial, “ that there was a residue of about sixteen acres of the Gale farm, over and above the quantity specifically devised and which the plaintiff took under the will,” etc. The widow and Andrew Christie, the grandson, died before the commencement of the action. Assuming, that the 100 acres devised to the grandson Andrew Christie, was a part of the Gale farm, as it probably was, and assuming also that the devise to him conveyed only a life estate and not a fee, the question is, whether the clause devising “ the remainder of land,” belonging to the testator of the Gale farm to the plaintiff, carried the remain *137 der of the estate, after the two successive life estates in the said 100 acres. It seems to me quite clear that it did not. The general rule is, that the language in a will is to be construed in the ordinary and popular sense. The testator had devised several parcels of the Gale farm, and owned sixteen acres not devised, which it is presumed he knew, and when he devised “ the remainder of land ” in that farm, the obvious meaning is, that he intended by that clause to devise such residue. The general signification of the word remainder is what is left after separating a part, and it was evidently used by the testator in this sense in respect to a remaining parcel of land. The word has a fixed legal meaning when applied to a remaining interest in an estate, after other interests have been carved out or separated, but in this clause it was not intended to thus apply. The remainder of land refers to property not before devised or specified and not to a remainder of estate in that which had been devised. The clause did operate to convey a fee to sixteen acres of land which was left of the Gale farm, and it cannot be supposed that the testator intended by the use of this phrase “ remainder of land ” to convey a fee in sixteen acres and also a remainder of estate in other land after successive life estates. We must presume that other language would have been employed. If the “ rest and residue of the estate ” or the “ remainder of the estate ” had been devised to the plaintiff, the question would be quite different, but it is the remainder of land in the Gale farm not before mentioned, which was evidently intended. The words are descriptive of property devised and not of the quantity of interest. The plaintiff, therefore, has no title by the will to the land in question and his action must fail. It is unnecessary in this case to consider the question whether the grandson, Andrew Christie, took a fee or a life estate. If the latter, the will did not give the plaintiff the remainder of the estate. . The judgment must be affirmed. AH concur. Judgment affirmed.