In re Estate of Miller

By the Court, Crockett, J.:

This appeal is from an order of the Probate Court, making a final distribution of the estate of Thomas Miller, deceased, who left a last will and testament, which was duly probated, and of which.the following is a copy:

“In the name of God, amen. I, Thomas Miller, of the City and County of San Francisco, State of California, being in good health of body and of sound and disposing mind and memory (praise be to God for the same), and being desirous of settling my worldly affairs while I have strength and capacity to do so, do make and publish this my last will and testament. -That is to say:

“I give, devise, and bequeath, all the estate, real and personal, or mixed, of which I may die seized or possessed, or in any way entitled;

First. To the Powell St. M. E. Sunday-school, one hundred dollars;

“ Second. One thousand for building a family vault under the superintendence of my executors;

‘ ‘ Third. One thousand dollars to be expended in educating Richard and Mary Ann Luke’s sons, viz., Eddy, Richard, and Thomas, the said sum to be truly and faithfully applied to the purpose above stated, in the best manner* that my executors can devise;

“Fourth. One certain note which I hold against Cutler Eldridge Waters and E. T. Batters, for one thousand dollars, to Freddy, son of E. Dewey and Lottie J. Waters, his wife. Said Lottie J. Waters to receive the income from said note until said Freddy Waters becomes twenty years of age, or at the executors option;

“Fifth. To Honor and Maria S. Miller each two thousand dollars.

“ Sixth. To each of my executors, five hundred dollars for their trouble, and that they be not required tti give bond.

“Seventh and lastly." That my mother receive the balance of my money for her benefit so long as she lives, and for her heirs after.

“ All to be settled and divided as herein mentioned by Donald McMillan, George Miller, and Henry W. Bennett, whom I appoint my sole executors.”

The controversy hinges upon the construction to be placed upon the word “money” in the seventh clause; .and the question is whether that word, in the connection in which it is used, is to be interpreted as including the real estate of the testator. It is conceded by the appellant that the word ,“ money” in wills has been frequently construed by the Courts, both in England and America, to include the personal estate of the testator. The following authorities would seem to place this point beyond all doubt: Dawson v. Gaskoin, 2 Keen, 14; Boys v. Morgan, 3 Mylne & Craig, 661; Kendall v. Kendall, 4 Russ. 360; Chapman v. Reynolds, 20 Beav. 221; Levinson v. Lady Lennard, 34 Beav. 490; Morton v. Perry, 1 Metc. 446; Cowling v. Cowling, 26 Beav. 452; Langdale v. Whitfield, 4 Kay & J. 436; 2 Redfield on Wills, 111, 2d ed.; 2 Williams on Executors, 1,025; 2 Redfield on Wills, 437, note; Jarman on Wills, chap. 24, and cases there cited.

.The doctrine of the authorities is, that in order to construe a devise of “money” as including the personal estate, it must appear from the context and on the.face of the will that such was the intention of-the testator, and that he used the word “money” as the equivalent of “personal estate.”

But the appellant, whilst conceding the rule in respect to personal estate, contends that a devise of “money” cannot be held to include the real estate. We are unable, however, to perceive why, under our probate system, and laws of descent and distribution, there should be any distinction, in this respect, between the real and personal estate; and have been referred to no authority, which, in terms, makes any such distinction. It may be that in England, where it is the policy of the government, to perpetuate real estate in families, rather than to disseminate it in small parcels among the masses; and, possibly, in some of the American States, where the real estate passes immediately to the heir, and is not asséts in the hands of the administrator for the payment of debts, a more stringent rule of interpretation might be favored, whereby a devise of “money” would be held not to include the real estate, under any circumstances. But in this State, both the real and personal estate are assets in the hands of the administrator for the payment of debts, with only this distinction between them, viz: that the personalty must be first exhausted before the realty can be so applied, and our policy, unlike that of England, is to disseminate real estate, rather than to perpetuate it in families. Hence, we should adopt the more liberal interpretation, whereby, in construing a devise of this character, the real and personal estate would be placed on the same footing. Nor can we see why, on principle, there should be any difference between them. A devise of “money” is held to include "the personal estate only when it appears on the face of the will, construed in the light of the surrounding facts that such was the intention of the testator; and we can see no reason why the same rule ought not to be applied to the real estate.

Inasmuch as the appellant concedes that the devise in the seventh clause of the will is sufficient to include the personal estate, it is perhaps unnecessary, after what we have said, to inquire whether it also includes the realty; because the samé process of reasoning by which it is shown to include the personalty, will, on our theory, establish that it includes the realty also. We will add, however, that in our opinion, it sufficiently appears on the face of the will, that the testator intended to devise to his mother the residue of his entire estate, remaining after the payment of the specific legacies, enumerated in the first six clauses. The will was evidently drawn up by an illiterate person, and the intention of the testator is awkwardly expressed. But after stating, in the introductory portion, that it was his intention to devise “all the estate, real and personal or mixed, of which I may die seized or possessed, or in any way entitled,” he proceeds, in the six following clauses, to make certain specific bequests; and then concludes by expressing the intention, “that my mother receive the balance of my money for her benefit as long as she lives, and for her heirs after.” The word “money” was evidently used in its widest and popular sense, in which it is frequently employed as synonymous with “property” or “estate.” The word “money” is often and popularly used as equivalent to “property,” and accordingly has received a similar construction in some of the cases upon wills. (2 Redfield on Wills, 437.)

Judgment and order affirmed. Remittitur forthwith.