Appeal of the Boards of Missions of the United Presbyterian Church

Mr. Justice Gordon delivered the opinion of the court, The material matter in controversy, in this case, is the sum of $34,457.72 which had accumulated, from dividends on bank stocks and otherwise, between the time of the date of the will in dispute, September 24th 1857, and the death of the testator April 5th 1877. On the one hand it is contended, that by force of the residuary devise this sum belongs to the appellants, the residuary devisees and legatees, and on the other, that of this sum Archibald Stewart, the testator, died intestate. This contention must be determined from the will itself; if the language of the residuary devise were certain and definite that would settle the question, but, as it is not, we must ascertain the intention of the testator by a consideration of the whole instrument. Turning then to the will we find, in the outstart, the expressed intent of Archibald Stewart to dispose of “ such estate wherewith it hath pleased God to bless me;’’ and, so far, intestacy, as to any part of his property, is not contemplated. Next, having no lineal heirs, he makes certain specific bequests to his brothers, nephews and nieces, the American Bible Society, the Western Pennsylvania Hospital and to his housekeeper. Then follows the residuary clause in controversy, as follows: “ The rest and residue of my property, real, personal and mixed, I do direct my executors to sell and dispose of and execute and deliver good and sufficient conveyances therefor, for such as may be real estate, and the proceeds of such sales, I do hereby devise and bequeath to the Home and Foreign Mission Board of the Associate Reformed Church in the United States of America, by whatsoever name or style the same may be known or incorporated by.” Some four years afterwards, December 7th 1861, in view of the union which had been effected between the Associate Reformed and the Associate Churches, he added a codicil to his will in which he says: “ And I do hereby bequeath and transfer the said bequest and money hereby bequeathed, to the Home and Foreign Missionary Board of the United Presbyterian Church aforesaid.” * * * “And Ido hereby republish my last will and testament, and do declare and direct that any real estate I may have purchased or become seised of since the making of said will, shall pass under the same as though I had been seised thereof at the making of said will.” Again, some three years after this, August 24th 1864, he added another codicil, by which, after devising a certain farm to his niece, Mary Pattison, he republishes and ratifies his will and the previous codicil. [513] In all this we may observe a continuing disposition by the testator to dispose finally of all his estate, and to increase rather than decrease the residuary fund bequeathed to the missionary boards.From all this it would appear that the testator did not intend to die intestate as to any portion of his property, real or personal, and this intention must govern unless there is something in the devise itself which forces us to a different conclusion: for it is a rule long and well-settled, that a will must so be construed as to avoid a partial intestacy unless the contrary be unavoidable. From this it results that the residuary legatee often gets that which the testator clearly never intended he should have. This is notably so in the case of lapsed legacies and bequests ill given, for here is the expressed intent that the residuary legatee shall have that only which remains after all other legatees are provided for. The testator may have intended the residue to be very small, and yet, for the causes above stated, it may turn out to be very large, and thus defeat his intention. This happens from the settled disposition of courts to hold that the testator intended anything else rather than partial intestacy. As was said by Mr. Justice Kennedy in Woolmer’s Estate, 3 Whart. 477: “I have always understood, that with regard to personal estate, everything which is ill given by the will does fall into the residue; and it must be a very peculiar case indeed, in which there can at once be a residuary clause and a partial intestacy. And he goes on to say, “ that it is immaterial how it happens that any part of the property is undisposed of, whether by the death of a legatee or by the remoteness and consequent illegality of the bequest; in either way it is residue, that is, something upon which no other disposition of the will operates.” AYe may, therefore, safely repeat, that the money in controversy must go to the residuary legatees, unless there is something in the residuany clause itself which prevents such a result. AYe may say which certainly prevents such a result, for if it be at all doubtful, we must follow the rule and declare against a partial intestacy. But it is insisted that the residuary clause in the will under consideration, embraces only such property as is the subject of sale, and so excludes the idea of money or other things not ordinarily the subjects of sale. This argument would be conclusive if, as in Hunter’s Estate, 6 Barr 97, this were a devise followed by a residuary clause ; for, in such case, it must be presumed that the testator intended to leave something for the residuary legatee. In the case in hand, however, the inquiry at once arises, if the money in controversy goes not to the residuary legatees, to whom does it go ? It must pass out of the will; of it the testator must have died intestate. But, as we have seen, a result of this kind is to be avoided if possible. It is true, indeed, that in Bredlinger’s Appeal, 2 Grant 461, a direction in a will to sell the testator’s personal as well as real property, and divide the income among his five [514] children, was held not to mean notes, bonds and mortgages. But this case is badly reported, and, not only so, but the material* point in Hunter’s case, which is referred to as authority, is misapprehended. Nothing, therefore, can be predicated of this case. The only thing which renders this residuary clause at all doubtful or obscure is the direction which is found in it to the executors to sell, and the bequest of the proceeds of “such sales ” to the missionary boards. But does this direction amount to a limitation or qualification of the words “ The restand residue of my property, real, personal and mixed?” These words are sufficiently general to cover everything, and unless the alleged qualification excludes money, it also must fall into the residue. But as these boards were the favorite and principal objects of his bounty, we cannot but think it improbable that the testator intended to exclude residuary money from passing to these legatees, especially when he directed that money and money alone should be paid over to them. Suppose the testator, in his lifetime, after the making of his will and the codicils thereto, had converted all his real and personal property into cash, and it had been found on deposit at his death, would any one then contend that the residuary legatees could take nothing ? Yet, in that event, there would be nothing for the executors to sell. The rest and residue of my estate, of whatsoever kind it may be, I give to my executors to sell, the proceeds to be paid over to the missionary boards of the United Presbyterian Church. What is .this after all but a mere direction to sell what is saleable ? And if part of that estate comes to the executors in the shape of money, what then ?' It need not be sold, that is all. The testator, for the benefit of his donees, directed that his entire residuary estate should be converted into money, but if part of it is found in the shape of money, it needs no conversion, and surely not the less does it pass to the legatees. The whole mistake originates in making the direction to sell a description of the property bequeathed, whereas nothing of the kind was intended. This apparent difficulty may be readily explained by assuming that Mr. Stewart did not anticipate that he would have any money to leave to these boards, except such as would be realized from the sale of his personal and real estate. On this assumption, the language used was intended for the then present condition of his affairs, but it were no more intended to prevent money from falling into the residue than it was to prevent the lapsed legacy of Archibald W. Stewart from taking that direction. He did not anticipate the lapse of that legacy, and so made no special provision for that event; he did not anticipate the accumulation of some $40,000 or $50,000 of money, and so made no special provision therefor. But as the residuary clause takes the one, there is no good reason why it should not take the other. It was said by Mr. Justice Yeates, in Findlay v. Riddle, 3 Binn. [515] 139, that the best rule in the construction of wills is, in the first place, to find out the general intent, and then, as far as the language will admit, to interpret particular expressions accordingly, and that in order to give effect to a general intent, a particular intent, inconsistent therewith, will be overlooked. In the case in hand, we have no expressed particular intent to interfere with a proper construction of the general intent, but only one that arises inferentially from the language used in conferring a power to sell upon the executors, and so this purely inferential intent may be the more readily overlooked. In concluding this branch of our case, we cannot do better than adopt the language of the vice-chancellor, in the case of Hearne v. Wigginton, 6 Madd. Ch. Rep. 119 : “ The real question is, whether a general residuary gift is to be limited and qualified to property which is the subject of sale, because the testator has added, that his residuary property is to be sold for the benefit of his residuary legatee. It is uncertain, at the making of the will, what the testator’s property may consist of at his death, and the direction to sell implies only a general intention, on part of the testator, that his residuary property shall be converted or collected for the benefit of his residuary legatee.” The remaining question is of easy solution. The legacies to John Stewart, William Stewart, Floranna Thompson and Eliza McQuilken, who died during the lifetime of the testator, leaving issue, are saved from lapse by the Act of May 6th 1844. The addition of the words, “ and none others,” to the directions to transfer the bequeathed stocks to the legatees, above named, is of no special significance. The testator, certainly, did not intend thereby to abridge the rights of these legatees, but rather, 'in this manner, to emphasize the absolute character of the gifts, and to indicate that they should vest in them to the exclusion of all others; and they, thus being made to vest in the immediate donees, passed to the heirs of those donees upon their decease. The decree of the Orphans’ Court is reversed and set aside, and it is ordered that the report of the auditor be confirmed; that distribution be made as in that report recommended, and that the appellees pay the costs of this appeal.