Hofius v. Hofius

Mr. Justice Trunkey delivered the opinion of the court, January 5 th 1880. The learned judge of the Common Pleas truly said, “It should not be, and never is, presumed that a testator intended to die intestate of any portion of his estate, if a contrary intention can be fairly deduced from the language of his will.” And he might have added, “ No presumption of an intent to die intestate, as to any part of the estate, is to be made, when the words of the testator will carry the whole:" Raudenbach’s Appeal, 6 Norris 51; Stewart’s estate, just decided, opinion by Gordon, J. “Estate” signifies the property a person possesses, both real and personal; “ property of all kinds which a person leaves to be divided at his deathand in its more limited sense, especially property in lands. “ The residue ” of an estate, in testamentary language, means whatever is not specifically devised or bequeathed, and it ought to have that meaning, unless the whole will taken together shows clearly it was not so intended: Willard’s Estate, 18 P. F. Smith 327. John Hofius’s will contains this item: “The residue of my estate, after paying all just debts and the above bequests, it is my will' [308] that said residue shall be put out at interest by my executors, with ample security, and the interest thereon paid annually to my said wife, Maria, during her natural life, so long as she shall remain my widow, and in one year after her death, be equally divided between my children, Laura and Julia, the two youngest heirs.” “Bequest” is sometimes, though improperly, used as synonymous with devise. It may be applied to the real or personal estate, according to the intent apparent in the will: Ladd v. Harvey, 21 N. H. 514. The first object of this will is, provision for the testator’s wife; the last, his wife and two youngest daughters. It contains specific devises or bequests to all his children who were living, and to the heirs of those who were dead. The whole will taken together, so far from showing an intention of the testator to die intestate as .to part of his estate, is a well constructed and plain disposition of all his property. It is devised and bequeathed in direct and positive terms — there is no obscurity. In the residuary clause, the words, in their technical and popular sense, carry all the estate that is left after paying his debts, devises and bequests. This disposition cannot be set aside for want of direction to convert realty into money, nor for inaccuracy of expression as to putting said residue at interest. No obstacle is in the way of carrying out the will. If need be, the land can be converted under the order and direction of the Orphans’ Court. There is no room for interpretation to defeat the passing of the residue of the estate; nor is there occasion to suppose reasons for the omission to direct his executors to sell the land; but if there were, we would rather surmise that the testator made his wife one of the two executors, intending that to avoid difficulty between her and the young daughters about the use of the land. With reference to a case cited by defendant in error, it may be remarked, it does not apply; for here, subject to the life use of the widow, the estate is given to the testator’s heirs. Judgment reversed, and now, on the case stated, judgment for defendants below.