Young v. Norris Peters Co.

Mr. Chief Justice Shepard delivered the opinion of the Court: 1. The first question to be considered arises on the exceptions taken to the introduction of the wills of James E. Young and John M. Young, respectively, after proof of their execution as wills affecting real estate. Before the passage of the act of Congress of June 8, 1898, the probate of a will in the District of Columbia was evidence of its validity only so far as it affected personal property. As showing the passage of title to real estate the instrument itself must have been produced, with the proof of subscribing witnesses, as was done in this instance. Section 2 of the act aforesaid (30 Stat. at L. 434, chap. 394) conferred plenary jurisdiction upon the supreme court of the District of Columbia, holding a special t.rm therefor, to hear [145] and determine all questions relating to the execution and to the validity of any and all wills devising any real estate within the District, and of any and all wills and testaments properly presented for probate therein, and to admit the same to probate and record in said special term; and provided that neither the execution nor the validity of any such will or testament so admitted to probate and record shall be impeached or examined collaterally, but the same shall be in all respects and as to all persons res judicata, subject, nevertheless, to the provisions hereinafter contained. See also D. C. Code, § 117 [31 Stat. at L. 1208, chap. 854], Section 8 declares that the preceding sections shall apply only to wills and testaments hereafter offered for probate, etc., provided that “any person interested under any will heretofoie filed in said court [i. e., one before made] may offer the same for probate as a will of real estate, whereupon such proce dings shall be had as by this act are authorized in regard to wills hereafter offered for probate.” [30 Stat. at L. 437, chap. 394.] Section 141 of the Code, re-enacting the foregoing section, expressly declares that the preceding sections of the Code relating to probate shall not apply to wills and testaments offered for probate prior to June 8, 1898, etc.: “Provided, that any person interested under any will filed in the office of the register of wills for the District of Columbia prior to said date may offer the same for probate as a will of real estate, whereupon such proceedings shall be had as by this Code are authorized in regard to wills offered for probate after said date.” [31 Stat. at L. 1213, chap. 854.] The contention of the appellants is that, under the sections aforesaid of the act of 1898, and of the Code, which went into effect January 1, 1902, no will of a testator dying before June 8, 1898, can be admitted to show title to land in an action of ejectment, unless it shall have been admitted to probate as provided therein. We need not pause to consider whether Congress had tbe power to impose the condition contended for upon wills that went into effect before the enactment, or whether, if so, parties [146] claiming thereunder had such substantial rights in them as were expressly saved by section 1638 of the Code [31 Stat. at L. 1435, chap. 854], because we are of the opinion that it did not undertake to exercise such power. The provision of section 8, substantially re-enacted in section 141 of the Code, that pa: ties interested under such a will, filed prior to said date in the office of the register of wills, “may offer the same for j róbate as a will of real estate,” is clearly intended as permis-ive, and not mandatory. There was no error, therefore, in permitting each will to bs introduced m evidence after proper proof of its execution in due form. 2. The error assigned on exceptions taken to the introduction of the probate of the said wills as wills of personal property, on November 15, 1895, raises a question of no practical importance. If inadmissible, no possible injury was sustained by the appellants. The execution of each will was amply proved, under the terms of the stipulation relating thereto, and no attempt was made to contradict or impair the credibility or weight of the evidence. Nor do appellants deny that, if admissible in evidence under the proof given, they were sufficient, without additional proof, to pass title, whatever it may be, to the devisees. 3. The will of James E. Young having been properly admitted in evidence upon the proof of its due execution, tbe question of title to the land in controversy, as between tbe contending parties, depended upon its construction. If, as contended by the appellants, the devise therein to John M. Young passed to him an estate for life only, the direction of a verdict for the defendant was erroneous. On the o'her hand, if he took an estate in fee the court was right in directing the verdict. The contention of the appellants is based upon the law in force in the District of Columbia at the time when this will went into effect, under which it has been a settled ride that a simple devise, without any words of limitation or description of the extent of the interest devised, created an estate for life only147 At the same time any words sufficiently indicating an intent on the part of the testator to create the greater estate will be given that effect, no matter what their form may be, and the whole will may be looked into to ascertain this intention in respect of the particular clause. McAleer v. Schneider, 2 App. D. C. 461, 467. Under our view of the effect of what we regard as a residuary devise in this will, it is unnecessary to search its language throughout for the purpose of ascertaining and deteimin’ng whether the testator intended to vest an estate in fee in John M. Young by the terms of the preceding specific devise. By the terms of this residuary clause the testator gives, wills, bequeaths, and devises to his brother, John M. Young, all of the personal property of which he died “seised and possessed, as well, also, as any other property or properties not otherwise willed and devised as hereinbefore set forth.” If the fee did not pass by the preceding devise, it was clearly not otherwise willed or devised, and hence vested in John M. Young by virtue of this residuary clause. Courts, as a general rule, will always construe a residuary clause so as to pre~ent intestacy as regards any part of the testator’s estate, unless there is an apparent intention to the contrary. Reid v. Walbach, 75 Md. 205, 217, 23 Atl. 472; Dulany v. Middleton, 72 Md. 67, 76, 19 Atl. 146; Barnum v. Barnum, 42 Md. 251, 311. See also, as to the general effect of a residuary devise upon reversions, etc., Hayden v. Stoughton, 5 Pick. 528, 539; Davis v. Callahan, 78 Me. 313, 318, 5 Atl. 73; 1 Jarman, Wills, 6th ed. Bigelow, pp. 637 et seq.; Schouler, Wills, sec. 524. The residuary clause expressly relates not only to property of which the testator was possessed, but also that of which he was seised, and he uses the word “devise” as well as “bequeath.” Moreover, the word “property,” where there is no indication of its use in a restricted sense, has generally been held to include real property. McAleer v. Schneider, 2 App. D. C. 461, 469; Hamilton v. Rathbone, 175 U. S. 414, 421, 44 L. ed. 219, 222, 20 Sup. Ct. Pep. 155; Jackson ex dem. Pearson v. Housel. 17 Johns. 281, 283; Morris v. Henderson, 37 Miss. 492, 505; Mc [148] Keon v. Bisbee, 9 Cal. 137, 142, 70 Am. Dec. 642; Reid v. Walbach, supra. For the reasons given, we think that the court was right in directing a verdict for the defendant, and the judgment will therefore be affirmed, with costs. Affirmed.