Holt v. Hermann & Hynde

MAYFIELD, J.

The sole question involved in this suit is whether the title to a given house and lot passed, under specific devises, to two of her children, or whether it passed, under the residue clause of the will, to all the children and grandchildren of the testatrix. The correct decision of this question depends upon the proper construction of the will of the testatrix, Ann Mc-Evoy.

It is undoubted, and not denied, that the title to this lot passed, either under the special devises, or by the general residue clause.

It is not denied, and cannot be doubted, that, if the testatrix had died at the date of the making of the will, the title to the lot . in question would have passed by the specific devises to the two children. It is claimed by the appellants that this construction and effect is prevented by reason of the fact that the testatrix, subsequent to the making of the will, built the house in question on a part of the two lots described in the two specific devises, and thereby created a third lot, which did not pass by the specific devises, but by the general residuary clause. Appellants’ contention is well stated by their counsel as follows: “The point involved in the case is a contention on the part of appellants, who are minors, that, after the execution of the will by their grandmother in 1903, the testatrix, by cutting off the south end of two lots of land, which had been devised, respectively, to Elizabeth McEvoy and James McEvoy, two other coheirs of the testatrix with appellants, each of which had a house upon it in 1905, and building a house upon the third lot so cut off, created a third lot distinct and separate from the two lots to which it originally belonged as a component part thereof, and which third lot became part of the residuary estate of the deceased at the time of her death, which occurred in 1908.”

We cannot concur with counsel in this contention. Counsel bases his contention upon the rule of construction of wills, that the will speaks as from the death of the testator, and not as from the date of the making of this will. This is a well-accepted and an oft-repeated rule; but this rule, like most other rules, is not without limitations.

There is another rule of construction of wills, as ancient, authentic, and just as the one above referred to, and this last-mentioned rule is often stated to be the first and most important one. It is that “the intention of the testator, if not inconsistent with the law nor •with public policy, must control.” If, therefore, we can ascertain the intent of the testator, we should give effect to it, unless the will runs counter to the law, or is against public policy.

Thus construing the will in this case as a whole, we have no doubt that it was the intention of the testatrix, when she made the will, and also when she died, that the land in question should pass under the two specific devises, and not under the general residuary clause.

The residuary clause was never intended to dispose of property which was specifically disposed of in other clauses of the will. But for the improvement of the land mentioned in the two devises, • by the building of another house on parts of it, there would be no color for the claim that any part of it passed under the general residuary clause. If the testatrix had reserved the two lots in question, and out of them made a dozen lots, and built a house on each, then, nothing further appearing, it would be unnatural, we think, to hold that ten of these lots were thereby taken out of the special devises and passed under the general residuary clause. Hence we fully agree with the trial court in holding that the land in question, including the house placed thereon by the testatrix after the making of her will, passed under the special devises, and not under the general residuary clause, and therefore sustain his giving of the affirmative charge in favor of the defendants, appellees here.

Affirmed.

McClellan, Sates, and Somerville, JJ., concur.