Blaisdell v. Hight

Peters, J. The testator, after bequeathing a support to his wife, and sums of money to several children, added in his will [308] these words: “I give and devise to my son, Albert Gr. Barnard, his heirs and assigns, all my real estate situate in Sidney aforesaid ; also, all the residue of my personal estate and possessions of whatever kind or name.” Many years after the will was made, an undivided fourth of a parcel of land,, not situate in Sydney, descended to him from a brother. It is reasonable to suppose, as argued on both sides, that at the date of the will he had no expectation of such an inheritance. Nor does it appear that at that time he had any real estate outside, of Sidney. The question is, does the will operate to devise this real estate not situate in Sidney. The claim that it does rests upon the idea that the words “ situate in Sidney,” undertake to describe, rather than to limit, the real estate to be devised, the testator meaning to devise all the real estate he had, or might have, wherever situated, and that the word “ possessions ” was used to embrace real, as well as personal, estate. The argument is aided by the suggestions, usually of force, that the presumption is that the testator intended to leave no possible property undisposed of, and that the policy of the law favors the rule of preferring a construction which wrill prevent intestacy. Although the question is a nice one, we are constrained to think that, all things considered, this interpretation is not the correct one. We are to ascertain the real intent of the testator. It will be noticed that the will was drawn by some one tolerably familiar with the use of legal terms. The word “ possessions ” may, no doubt, include real estate, if so intended, though such would not be its technical signification. Bouvier so declares in his law dictionary. The words “ all I may die possessed of,” may include real estate (Wilce v. Wilce, 7 Bing. 664), or may not (Monk v. Mawdsley, 1 Sim. 286), just according to the context with which the words are associated. The writer of the will had used the term “ real estate,” describing the property in Sidney, and knew the force and meaning of it. The presumption is that, if he had intended to include other real estate in an after-description, he would have used the same term again. If he intended to leave all his real estate to his son, why should he have devised it in two parcels instead of including [309] it in a single description. If it was bis intention to devise all lands then or ever to be possessed, he would have left off the qualifying words “ situate in Sidney.” And if by the word “ possessions ” he intended to include realty, there was no necessity of the other clause in addition to it. It has been held that, where the word “ land ” lias been used in a preceding portion of a will and omitted in a later portion of the instrument, the omissiou of so important a word could not have been accidental. Redfield in his work on wills cites cases to that effect. Had the testator intended to include real estate in the word “ possessions,” it strikes us forcibly that he would not have used the prefix “ personal ” at all, and the language would have been “ all the residue of my estate and possessions.” The words “ of whatever kind or name” are not naturally descriptive of real estate, but usually apply to personal property. Lands are not of various kinds and names often. The word “ personal ” was manifestly used to qualify and describe both estate and possessions. Accomplished draughtsmen often use words somewhat tautologically in the effort to embrace every description of personal estate. The defendant’s counsel insists that a general intention existed in the mind of the testator to dispose of all the property he ever expected to have. The trouble is, that he has not employed words sufficient to carry that intention into effect. There may have been an omission. But the court are to construe and not make the will. After all, it is but conjecture that the testator would have made the favored sou the devisee of still other real estate had he known he was to possess other. It might have led him to make ati entirely different partition of his property among his children. In Roper’s Leg. 1464, it is laid down that where a testator, in the disposition of his property, overlooks a particular event, which had it occurred to him he would have provided against, the court will not rectify the omission by implying or inserting the necessary clause. Then, it is a general rule that, if it is uncertain and doubtful whether the testator intended to devise real estate, the title of the heir must prevail. At common law, after-acquired interests in real estate would not pass by will. By our statute (R. S., e. 74, § 5,) they do, provided such appears to have been the [310] intention. Bullard v. Goffe, 20 Pick. 252, 258. Gibbons v. Langdon, 6 Sim. 260. Goodchild v. Fenton, 3 Yo. & Jer. 481. Cooper v. Pitcher, 4 Hare. 485. Judgment for demandant. Appleton, C. J., Danforth, Virgin and Libbey, JJ., concurred.