Chapman v. Chick , 81 Me. 109 ( 1888 )

Phteiís, C. J.

The demandants and defendant are heirs at law of Nathaniel Atwood, deceased, and entitled to any undevised real estate left by him, the demandants to two-thirds and the defendant to óne-third thereof. The question is whether any un devised real estate was left by Nathaniel Atwood. He died in 1858, leaving a will, in which, after some minor bequests to distant relatives, he gives his wife Lydia certain personal property and twenty-five hundred dollars outright, and the use and occupation of the homestead for her life time or during widowhood. He provides that the twenty-five hundred dollars may be taken by the widow from any of Ms estate real or personal at the appraisal thereof, at her election.

He then gives, among bequests to others $500.00 to a daughter, one of the demandants-, and $250.00 to a granddaughter, the other demandant, and declares that all his bequests are based upon the assumption that his net estate will amount to the sum of $4,750.00. He further declares that, if Ms estate should turn out to be more than that amount, certain of the bequests, including those to the widow and the persons who are the parties to the present action, shall be increased (relatively with each other) proportionally with the total estate left by him.

The estate much exceeded the sum named, there being real estate of the appraised value of $3,335.00 and personal estate appraised at the value of $11,197.99, total values being $14,532.99. So that the widow’s portion became enlarged to $8,036.73, and the portions of the demandants were increased from the sums of $500.00 and $250.00 to the sums of $1,600.00 and $800.00, upon the basis that all the estate was converted into or settled as personal property. Each demandant, and all other legatees except the widow, received in money the portions they were thus entitled to. The widow received possession of the balance of the property, consisting of the real estate, $3,335.00 in value, about $5,700.00 in money or its equivalent. The accounts show a small discrepancy, probably from not noticing a pew, used in common by the heirs, in the calculations.

The demandants now occupy a position of hostility against this construction and settlement of the will, contending that no real estate was devised, or intended to be, beyond the use and occupation of the homestead, and that the bequests were a charge on the personal property only. They admit, however, that the widow might have taken her $2,500.00 in real estate, but contend that she never elected to do so.

We think that the will, evidently written by an unskillful hand, and without doubt by the testator, was intended to make a disposition of all the testator’s property, real as well as personal. The tests of intention all, or nearly all, point unmistakably that way. There is no residuary clause to catch up anything not otherwise disposed of, and still the mind of the testator was evidently bent upon a purpose of making full and final dispositions. In fact it would not be a misnomer to call the provision increasing certain legacies according to the amount of the estate, a residuary clause. It operates as such. The $2,500.00 could be taken from the “estate real or personal,” to go “to her and her heirs forever.” He provides for a contingency that his previous advancements to a child might exceed the proportion coming to it “on the final settlement of my (his) estate.” The legacies were to increase correspondingly “with my (his) estate.” He names men to appraise his “property and estate.” He enjoins upon his heirs to see that his estate is amicably settled “according to the provisions of this will.” He expresses the hope that his heirs, to all of whom he made bequests, and to some of them he had made advancements, would not be ungrateful, but would be satisfied with his testamentary doings.

It is evident enough that he had in mind no definite distinction between real and personal estate. Nor did his executor have, who rendered his accounts as if there were no distinction, acting on the idea and meaning of the testator.

We have said that the demandants contend that the widow-made no election to accept real estate in satisfaction of her-portion. Wo think she did. She went into possession of all the realty and kept possession, at an earlier date by herself, and later-by her guardian, until her death in 1882. She enjoyed the rents and profits and paid the taxes and repairs for over a quarter of a century, without opposition or adverse claim from any one. In 1859, she convoyed'away a part of the real estate, the homestead, as if her own, by a warranty deed. If she did not accept thereat estate in satisfaction of her portion, she never received her-portion. No sale of the land was made either by heirs or executor. The title to the land came to her by the will.

The general rule as stated by Mr. Bigelow on the point of election, in his last work on estoppel, p. 566, is applicable, and is as follows: “In regard to the question what constitutes an election, it is held in general that one who takes possession of property under a will and holds and manages it for a long time, and especially if he sell the whole or part of it, will be considered as making a binding election to accept that property under the terms of the will.” Another principle stated by the same author, at p. 562, hits at the position upon which the demandants now place their claim. He says, “The most familiar example of tins kind of estoppel is found in the case of wills. It is an old rule of equity that one who has taken a beneficial interest under a will, is thereby held to have confirmed and ratified every other part of dhe will, and he will not be permitted to set up any right or idaim of his own, however legal and well founded it may otherwise have been, which would defeat or in any way prevent the full operation of the will.” If the real estate was not devised by the will, the demandants have received more than the testator intended they should. We feel strongly the belief that the real .estate was conditionally devised, and that the acts of the widow turned it into an absolute and completed devise. It is argued, on the' demandants’ side, that a circumstance indicating no intention to devise realty, is found in the clause of the will giving use and occupation of the homestead for life or widowhood, .and allowing the widow to prevent any division of the property while she lived. That does not militate against the views we .have expressed. It is rather in aid of them. If the widow should .not elect to do so, then the other provisions would prevail.

The demandants next take the position that, if disentitled under their father to claim two thirds of the estate demanded, they are still entitled to the same as heirs of their mother, under the claim set up by them that their mother’s will, under which the ■defendant claims the land as a devisee, does not devise any real estate. The mother, Lydia Atwood, after some small bequests* makes in her will this final provision : “I give and devise to my daughter Margaret R. Chicle (this defendant), all the rest and residue of my property and estate of every description and wherever situate, after the payment of my debts and the foregoing legacies, to have and to hold the same to her and her heirs forever.” This is comprehensive and clear. There can be no doubt the intention was to include all real as well as personal property. Effective expressions are employed. She gives and “devises” — “all the rest and residue” — of her property and “estate” — of “every description” — “wherever situate” — to hold to her “and her heirs” forever.

There being nothing in other portions of the will expressing or implying anything to the contrary, she must have intended, by a general description, to cover all the property she had in the world after satisfying previous bequests. The word estate may include real as well as personal. The same may be said of the word property. In ancient cases either of the words was supposed to be used in a restricted sense. But in modern construction the popular signification is allowed to prevail. Whether the words are used in the wide or narrow sense, must depend on other words associated with them and the general context of the will. The word possessions is allowed the same scope of meaning. Sehoul. Wills, § 510, and cases. Blaisdell v. Hight, 69 Maine, 306, and cases. In Smyth v. Smyth, 8 Chan. Div. 561, it was held that a freehold estate passed by force of the words, “all the rest and residue.” Many kindred cases are there cited and commented upon.

Demandants nonsuit.

Walton, Virgin, Libbey, Foster and Haskell, JJ., concurred.