Brimmer v. Sohier , 55 Mass. 118 ( 1848 )

Forbes, J.

This case comes before the court upon an agreed statement of facts. Two questions only have been argued, and submitted for our decision. The first question is, whether Mary Ann Brimmer took any estate under the will of George W. Brimmer. This will is exceedingly brief, and was, apparently, written by the testator, without the aid of professional advice. The first clause contains a bequest of all the estate of the testator in Brewer, in the state of Maine, to the surviving children of his deceased sister, Susan Inches. Then follows a bequest to George B. Sohier. The next and last clause of the will is as follows: “ The residue of my real and personal estate in Boston, North Carolina, and elsewhere, I give to the survivors of my brother and sisters, Martin Brimmer, Eliza O. Brimmer, and Mary Ann Brimmer.” All the residuary devisees named in the will survived the testator; and after his death, Mary A. Brimmer died, leaving the plaintiff and Martin Brimmer her survivors. ■ Upon this state of facts, the plaintiff contends that Mary A. Brimmer took nothing under the will; that the residuary clause created a devise upon a contingency: that it was a devise to the two out of the three persons named who might survive the third. This construction is based upon the technical meaning and force of the words “ to the survivors of my brother and sisters; ” and it ought not to be adopted by the court, if it would defeat the obvious intention of the testator. There can be no reasonable doubt of the intention of the testator, that in case but one of the devisees named in the residuary clause should survive him, the estate should vest in such sole survivor. But upon a strict and literal construction of these words, if two of the three had died during the lifetime of the testator, the survivor would not take. It is not a bequest to the survivor, but to persons who shall answer the description of survivors. The construction contended for would give to the devise a very extraordinary and anomalous character. It is evident that the three devisees were equally objects of the testator’s bounty, in case they should survive him; but this construction would select two out of the three, by lot, as it were, and would give the estate to them upon a contingency which might happen during the lifetime of the testator, or not until many years after his decease, or which, indeed, might never happen. If the object of the testator had been, as was suggested, to preserve the property in his family, no good reason is perceived why it was not given to the ultimate survivor. It may be further remarked, in this connection, that although the contingency upon which the estate depended might not happen for an indefinite period after the death of the testator, yet he made no disposition of the estate for the time intervening between his death and the happening of the contingency. If it be said that the devise should be so construed as to give the estate to the last survivor, it may be replied that such a construction would be doing greater violence to the language of the will, than to hold the devise to be unconditional. The devisees are expressly named; their sister Mrs. Inches had previously deceased; and the expression “ the survivors of my brother and sisters” was a correct description of the devisees, in the then state of the family. It is at least as probable that these words were used by the testator by way of description, as that they were used for the purpose of creating a survivorship of the character suggested by the plaintiff. Looking at the language of this clause, without reference to other parts of the will, we perceive no impropriety in transposing the members of the sentence, and in reading the clause in this manner : “ The residue of my real and personal estate, &c., I give to Martin Brimmer, Eliza O. Brimmer and Mary Ann Brimmer, who are the survivors of my brother and sisters.”

Upon the construction contended for by the plaintiff, a tenancy in common would be created between the two survivors, but not necessarily at the time of the testator’s death. We are satisfied, however, that the object of the testator was to provide against the death of one or more of the devisees during his lifetime, and that he intended to create a tenancy in common between all the devisees who should survive him, with the right of possession immediately after his decease. Upon this construction of the will, which we believe to be the only one that will give effect to the intention of the testator, at his death Mary Ann Brimmer became a tenant in common with the other residuary devisees.

By the will, then, of George W. Brimmer, Mary Ann Brimmer (who also died testate) took an undivided third part of the residue of the real and personal estate of the testator; and the second question is, whether, by her will, her interest in this real estate passed to Martin Brimmer, the defendant’s testator.

George W. Brimmer died in 1838. The will of Mary A. Brimmer was made in 1835, and the codicil in 1837, so that her interest in the estate of George W. did not vest until after the making of the codicil. The question is, therefore, whether by her will this after acquired real estate passed to her devisee. By a well known rule of the common law, after purchased real estate did not pass by a will. And this rule was enforced so strictly, that a will was held to be inoperative upon real estate of which the testator was the owner at the time of the making of the will, and afterwards sold, then repurchased, and died seized. The rule required that the testator should be seized at the time of the making of his will, and that he should continue seized, without interruption, until his death. The legislature became satisfied that this rule tended to defeat the intention of testators, and, consequently, it was changed by the revised statutes, which went into operation on the first day of May, 1836. It was insisted, on the part of the plaintiff, that this will, having been made in 1835, did not come within the operation of the revised statutes, although the testatrix survived three years and upwards after the change in the law took place. But whether there be any force in that objection or not, we do not think it applies in the present case. In 1837, the testatrix, by the codicil, ratified, confirmed and republished the will, the effect of which was, to give the same force to the will as if it had been written, executed and published at the date of the codicil. In this manner the will is brought directly within the operation of the revised statutes, and is to be construed according to the provisions of that code.

The Rev. Sts. c. 62, $ 3, provide that “any estate, right, or interest in lands, acquired by the testator, after the making of his will, shall pass thereby in like manner as if possessed at the time of making the will, if such shall clearly and manifestly appear, by the will, to have been the intention of the testator.”

It is not supposed that the intensivos “ clearly and manifestly,” as used in this section, can have any well defined or precise effect in the construction of wills. They are too vague and indeterminate to form a rule of much practical use. The statute requires, undoubtedly, that the intention of the testator should be fairly inferable from the will, but it does not require an express declaration. The intention is a matter of deduction or inference from given premises. Suppose a testator to express his desire (as is sometimes done in the introductory part of a will) to dispose of all such property, as he might leave at his decease, and, after specific bequests, to devise all the residue of his estate; can it be doubted, that after purchased land would pass by such a will, and yet the operative words of the devise might be satisfied by restricting them to lands which the testator owned at the time of making the will ? Under this section, the true question seems to be, to what period of time was the attention of the testator directed ? Was it fixed exclusively upon the condition of his estate at the time of making the will ? or did he contemplate the possibility of future changes, and intend to embrace within- the scope and operation of his will his whole estate at the time of his decease ? In other words, did he intend to die testate as to all the property which he might leave, or was he content to die intestate as to a part, and leave it to be distributed according to law >

The provisions in this will, to which the attention of the court has been directed, are as follows: “ One moiety of all the residue of my estate, real, personal and mixed, wheresoever the same may be situated, I devise and bequeath unto my sister Eliza O. Brimmer, to hold during her natural life.”

“ All the residue of my estate I devise and bequeath unto my brothers, George Watson Brimmer and Martin Brimmer, their heirs and assigns forever, in case they both survive me; otherwise my will is, that the brother who shall survive me shall take the whole and entire residue of my estate.”

Upon what estate did the testatrix intend that these clauses should operate ? Did she intend to limit them to the estate owned by her at the republication of the will ? or did she intend to embrace within their operation all the property which she might own at her death ?

Every testator is aware that his will cannot take effect until after his death; that until that event all his property remains at his disposal; and, ordinarily, it is from that period that his intention to settle its final destination may be presumed. The rule of the common law, before referred to, is purely artificial; it did not grow out of the subject naturally or spontaneously, but, on the contrary, it is inconsistent with the terms, in their popular acceptation, in which a residuary devise is commonly made. And wherever there is a devise of the whole estate, or of all the residue of the estate, of a testator, there being both real and personal estate upon which the will may operate, an intention to give after acquired real estate may, perhaps, be justly inferred, unless there be some indication of a different intention to be found in the will. Wait v. Belding, 24 Pick. 136, 137. Such is the effect of a will upon after acquired personal property; and, without the aid of professional advice, few testators are aware, that, in this respect, there is any distinction between personal property and real estate. In the present case, there is a devise to the plaintiff, for life, of one moiety of all the residue of the estate of the testatrix, real, personal and mixed: then follows a devise to the brothers of all the residue, including the othet -moiety of the estate, real, personal and mixed, together with the remainder after the termination of the plaintiff’s life estate. The arrangements made by the testatrix were, therefore, prospective, looking forward to an event which might not ' happen until many years after her decease. And in this connection, the concluding paragraph is, we think, very significant. The estate is given to the brothers in case they should both survive the testatrix; “ otherwise, my will is, that the brother who shall survive me shall take the whole and entire residue of my estate ” — language as comprehensive and as emphatic as could well be used, and, as it appears to us, clearly intended to embrace the residue of all the estate which the testatrix should leave at the time of her death. In contemplating the event of survivorship, the mind of the testatrix was carried forward to a state of things which would exist at the period of her decease ; and it is with a reference to that period that the disposition of her whole property is made. It is the opinion of the court, that the testatrix did intend not to die intestate as to any part of the estate which she might leave, and that the after acquired real estate did pass, by her will, to the surviving devisee, Martin Brimmer.