Lorillard , 16 R.I. 254 ( 1888 )

Our opinion is that the parcel of land purchased by Catharine L. Wolfe on the 29th of May, A.D. 1884, did not pass under the twelfth clause of her will, but that it did pass under the nineteenth clause as a part of the residuary estate, said nineteenth clause extending in express terms to real property belonging to the testatrix in her own right at the time of her decease. The parcel was purchased after the will was made, and therefore could not pass by it unless by virtue of the statute, Pub. Stat. R.I. cap. 182, § 1, the familiar rule of the common law being that, in order to pass real estate by will, the testator must be seized of it when he makes the will. Our statute empowers a testator to devise after acquired real estate, "provided his intention to devise the same appears by the express terms of the will." In Church v. Warren Manufacturing Co.14 R.I. 539, this court held that "the proper construction of our statute requires that the intention appear in direct and explicit terms on the face of the will." The twelfth clause devises two parcels of land "recently purchased at Newport" by the testatrix, which of course means two parcels which she had previously acquired, and it contains no "express terms" from which it appears that it was her intention to devise still a third parcel to be subsequently acquired. We do not think there would be any question but that the devise included only the two parcels which the testatrix then had, if she had not purchased one of said parcels from the same person from whom she subsequently purchased the third parcel, and had not afterwards erected a valuable building partly on both of the two latter parcels, which were contiguous and formerly constituted a single tract, since it is natural to suppose that she must have intended the building for use as a whole in connection with the real estate devised by the twelfth clause. Admitting this, however, it does not follow that she had this intention when she made her will. She may have formed it after purchasing the third parcel, and have intended to make it effectual by codicil or a new will. Or, even if we suppose she had the intention when she made her will, still it is only by way of conjecture or inference that we can so suppose; the intention does not appear in "express terms," as the statute requires, and an intention which the will does not duly demonstrate is as inoperative as if it had never existed. As to the suggestion that there is some inadvertence in the language of the twelfth clause, we can only say that we do not find the slightest reason for thinking that that clause is not in word and letter precisely as the testatrix intended to have it.