Sharpe v. Allen ( 1880 )

Deadekick, C. J.,

delivered the opinion of the court..

On the 5th day of December, 1864, G. W. Allen executed his will, by which he gave certain property, real and personal, to his two sisters, Cynthia and Emma, and his brother, defendant Greene. He after-wards acquired other property, real and personal, and died in 1876, leaving as his heirs-at-law and distribu-tees, complainant and defendants.

The bill is filed by complainant, a sister of the testator, exhibiting the will, and claiming that, as to the property acquired by testator after its execution, be died intestate, and that she is entitled to a share thereof, which she seeks to have decreed to her.

Defendants, Greene, Cynthia and Emma, demur to the bill, upon the ground that the will exhibited shows that the testator did not die intestate as to any of his property, but that they are entitled, under said will, to all left at his death.

The Chancellor overruled the demurrer, and the defendants have appealed to this court.

The first clause of the will gives directions as to his burial. The second directs that his debts shall be paid out of his personal property. The third is as follows: “I have some real and personal property, and I do hereby make the following disposition of it: 1st. I have a tract of land, of two hundred and fifty acres, lying on the south side of French Broad River, between the lands of ¥m. Burnett and the mouth of Wolf Creek, which I hereby give and bequeath to my two sisters, Emily Allen and Cynthia Cowan, and to their heirs forever; the title to which is hereby vested in them. 2d. I have an undivided interest in the real and personal estate of my father and mother, aside from some other personal property in my own right, all and singular of which I do hereby give and bequeath the same to my said two sisters, Emily Allen and Cynthia Cowan, and to my brother, Greene Allen, jointly to share and share alike in the same.” The next and last clause appoints his brother Greene executor.

The language above quoted is all that the will contains purporting to dispose of his property by the testator; and the question is, does this will dispose ■of the property of testator acquired by him after its execution.

By the act of 1842 it was provided, “that any estate or interest in lands acquired by a testator after making his will, of which he died seized and possessed, shall pass thereby in like manner as if owned by him at the making of his will, if such deafly appears by the will to have been the testator’s intention.”

And it was held by this court, in Wynne v. Wynne, '2 Swan, 405, that the language, “I give to my much-beloved wife, Micha Wynne, all the balance of my property, both real and personal, to have and to hold to her own benefit, to the exclusion of all others,” clearly manifested the testator’s intention that his wife should take the lands acquired by him after the execution of his will.

Before the passage of this act, lands acquired after the making of a will did not pass under it, although the testator might have so intended and directed. But •this act authorized a testator to pass, by his will, after-acquired lands, by showing clearly in tbe will that such was his intention. This act, however, is not brought into the Code; but the act of 1851-2, Code, sec. 2195, seems to have taken its place. It provides-that “a will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, and shall convey all the real estate belonging to him, or in which he had any interest at his decease, unless a contrary intention appear by its words and context.”

By the act of 1842, after-acquired realty could only pass by showing clearly such was the testator’s intention.

By the act of 1851-2, Code, sec. 2195, after-acquired realty shall pass by the will, unless a contrary intention appear by its' words and context.

The intention of the testator is' to be ascertained by giving to the language employed by him a fair and reasonable interpretation.

He says: “I have some real and personal property, and I do hereby make the following disposition of it: 1st. I have a tract of land of 250 acres,” describing it, “which I hereby give,” etc. “2d. I have an undivided interest in the real and personal estate of my father and mother’s estate, aside from some other personal property in my own right, all and singular of which I do hereby give to my two sisters, Emily and Cynthia, and brother Greene, jointly to share and share alike in the same.”

It will be observed that testator, when he comes to dispose of bis property, sets out by saying, “I have some real and personal property, and I do hereby make the following disposition of it,” and then proceeds to dispose of a tract of land to his two sisters, and an undivided interest in land and personalty derived from his father’s and mother’s estate, and personalty which he claims in his own right.

The reasonable construction of this language is, that testator, at the time of making his will, had, that is, held in possession, as his own, certain real and personal property, which he disposed of by giving a tract of 250 acres of land, part of said property which he then had, to his two sisters, and then the undivided •interest he held and owned in his father’s and mother’s ■estate, as well as such personal property as he then -held in his own right, as contradistinguished from that which he derived from his father’s and mother’s estate, to his two sisters and brother Greene. Such, we think, is the obvious meaning of the language employed. He • says, “I have,” etc., meaning “I hold now,” possession or control of the property specified; and this language is applied expressly to the 250 acres of land, the undivided interest in his parents’ estate, and, by • a reasonable and grammatical construction, with equal force and directness to the personal property which is in his own right. This language, in relation to personal property held in his own right, certainly -cannot reasonably be held to apply to other personal .property which he did not own or hold at the time, but which he might thereafter acquire, much less can ■anything in either clause be held to convey any other land than such as is specifically mentioned. If' s.o, to whom does it go, and under which clause does it pass?

The words and context can bear no other reasonable construction than that testator had, at the time of making the will, a present, existing right to the property mentioned, which he then proposed to dispose of.

In 1 Red. on Wills, it is said a will speaks from the death of the testator, and not from its date, unless 'its language, by fair construction, indicates a con-, trary intention. Hence, a devise of realty and bequest of personalty generally carries all a testator had at his. death. But when, he adds, a testator refers to an. actually existing state of things, his language should be held as referring to the date of the will, and not to his death, as this is then a prospective event., pp. 370-80.

In this casé, the testator says: “I have some real and personal property, and I do hereby make the following disposition of it: I have 250 acres of land,, and give it,” etc. “I have an undivided interest,” etc.,, “and some personalty, which I give,” etc.

Does not this language plainly mean that testator-then owned the property mentioned, thus referring to an actually existing state of things, and, according to. the authority just cited, and sound reason, showing that it was not the intention of testator that his will should pass after-acquired property, but that only which he had. The property disposed of was that which testator then had, and there is no language in the-will which can be reasonably construed as disposing of any other than that specified and described.

It follows that the Chancellor’s decree was correct, and it will be affirmed, and the cause will be remanded for answer and further proceedings. Appellants will pay the costs of this court.