status, which is now happily removed, it would not be useful to explain minutely how this term is used in England and other European countries.122 55. A legacy to the poor inhabitants of a particular place or parish creates a good charity, and is to go to the poor of that place not receiving alms.123 It is here said that a legacy to the 12 In Ogle. v. Morgan, 10 Eng. L. & Eq. R. 92, the testator gave "to each person, as a servant in my domestic establishment, at the time of my decease, a year's wages beyond what shall be due to him or her for wages." And it was held, reversing the decree of Vice-Chancellor Knight Bruce, by Baron Truro, Lord Chancellor, that a head-gardener did not come within the description of a servant in the domestic establishment. But his lordship inclined to think that the circumstance of a servant being hired by the year, but paid weekly, would not have excluded him from the legacy. And under a bequest "to all my servants living with me at my decease, and who shall have then lived in my service for three years, one year's wages," it was held to extend to servants who were in the employment of the testator, although not resident in the same house, but that it did not extend to any who had never entered into any contract of yearly hiring, or in which a yearly wage was agreed upon; and therefore a gardener, who was engaged at a fixed sum per week, although paid at irregular intervals, was not included. Blackwell v. Pennant, 10 Eng. L. & Eq. R. 270, s. c. 16 Jur. 420. In one of the very latest cases upon this subject, Darlow v. Edwards, 9 Jur. N. s. 336, (1863,) it was decided that where a testator bequeathes an annuity to his servant Sarah, "provided she shall be in my service at the time of my decease," and a few days before his decease dismissed her, without cause; as she was not, in fact, in his service at the time of his decease, she was not entitled to the legacy. So also where one gave a legacy upon the same conditions, and the testator becoming insane and being removed to an asylum, the legatee, who was a yearly servant, voluntarily quitted the house, receiving her wages from the family to the end of the year, before the expiration of which the testator deceased, it was held she was not entitled to her legacy. Venes v. Marriott, 31 Law J. Ch. N. s. 519; s. c. 6 Law T. N. s. 892, before Vice-Chancellor Wood. 123 Attorney-General v. Clarke, Amb. 422. The Master of the Rolls, Sir Thomas Clarke, said here, "It could not be intended that the poor inhabitants which are relieved by the parish should have benefit by this legacy, which in effect would be giving to the rich and not to the poor;" it must therefore be confined to the poor inhabitants not receiving alms; and he therefore ordered a scheme for administering the charity accordingly. See also Rogers v. Thomas, 2 Keen, 8; ante, pt. 1, § 37, pl. 13, and note. poor, without more, is good, and the persons to take shall be judged of by circumstances, citing Attorney-General v. Ronee, decided in 1728, where there was nothing in the will to determine what poor the testator meant, but it appearing that he was a French refugee, the court ordered it to be paid for the benefit of the poor refugees. 56. The term "relatives," in the American courts, applies, ordinarily, to persons in the line of consanguinity, and not to those connected by marriage. Where the gift is to relatives, resort must be had to the statute of distributions to determine who are entitled; but when the testator specifies a certain number of the nearest" relatives, the description will be applied independently of the statute.124 Where the gift is to "relatives" or "connections," substitution may be intended, but connections by affinity will not take, until the class of relatives by blood is exhausted. 124 66 RESIDUARY BEQUESTS. SECTION VI. DESCRIPTION OF THE SUBJECT-MATTER OF 1. The words "goods, chattels, or effects," used jointly, or separately, may include all personalty. 2. The word "effects" is more general in its operation than the others. n. 3. Digest and comment upon the cases upon this point. 3. The exceptions to the general and unrestricted use of these terms. (1.) These terms used with reference to a particular locality, as "in my house." (2.) Classification of the cases with the exceptions. n. 8. How far bank-notes and choses in action have any fixed locality. n. 11. The effect of particular words, preceding or following general words. (3.) The directions of the will in regard to the application of a bequest may aid the construction. (4.) Giving particular legacies, after general one, often limits the extent of the general words. n. 15. The force of this qualification considered and limited. Ennis v. Pentz, 3 Bradf. Sur. Rep. 382. (5.) This point further considered and discussed. (6.) The unsatisfactory grounds upon which many of the early cases proceeded. (7.) Gift of the residue of all the testator's money may carry the whole residuum. (8.) An exception sometimes shows the sense of the preceding terms. n. 25. The adherence to rules often leads one side of the testator's intent. (9.) Jarman's view of the law. The effect of a residuary clause in limiting prior general words. (10.) Where no other residuary clause, words less general will carry the residue. 4. The residuary bequest carries everything not otherwise efficiently disposed of. 5. Courts lean against intestacy as to any portion of the property. It requires very special words to restrict a residuary bequest. 6. Lapsed legacies fall to the residuary legatee. 7. It is important to observe whether enumeration in residuary bequests is intended to limit, or explain. 8. But if a portion of the residuary bequest fails it will not go to increase the remainder. 9. A residuary bequest may be so defined as to assume the incidents of particular bequests. 10. If the extent of the word residue is ambiguous, courts give it a general operation. 11. Error apparent on face of will, by way of miscalculation, corrected by construction. 12. One considered as possessed of what he has contracted for. 13. The word "jewels " is sometimes used in wills in different senses. 14. How far the word "books" includes manuscript notes bound in volumes. 15. Any error in the description of subject-matter of bequest readily set right. 16. The interest of the mortgagee is merely that of personalty, until foreclosure perfected. 17. Almost all terms descriptive of subject-matter in a bequest qualified by preceding words, and limited to things ejusdem generis. 18. Bequest of $500, out of such property as legatee may select, will not justify taking real estate. 19. Bequest of interest does not, generally, create an annuity. 20. Bequest of the amount of a note held to pass the note merely. 21. The terms "estate" and "property," held to include both realty and personalty, unless clearly proved to the contrary. 22. How far real or personal estate, not effectually disposed of by the will, passes under the residuary bequest. 23. Bequests of a “home,” and “support," how construed. 24. Bequest of copyright, how construed. 25. Construction of terms "provisions," "estate," and "wearing apparel." 26. Devise of a "house" carries all within the "curtilage." § 48. 1. It seems to be perfectly well settled that the terms "goods," "chattels," or "effects," whether used separately or in conjunction, as they often are in wills, must be held to include all kinds of personal estate of which the testator dies possessed, unless there is something to indicate that the words are used in a more restricted sense. But the words "goods and chattels " have naturally a more restricted signification than the word "effects." The former terms more naturally apply to personalty, in possession, and of the ordinary kinds, and not to choses. in action, or to money, or chattels real.1 2. But the word "effects" is more commonly used in the most extended sense, as synonymous with property or estate.2 In Michell v. Michell, it is said that the word "effects," used 1 Mullins v. Smith, 1 Drew. & Sm. 204; s. c. Dig. 6 Jur. N. s. 252. 2 Campbell v. Prescott, 15 Vesey, 500, 507. Lord Mansfield said, in Hogan v. Jackson, 1 Cowp. 299, 304, "I take effects to be synonymous to worldly substance, which means whatever can be turned to value; and therefore, that real and personal effects mean all a man's property." * 5 Madd. 69, 71. The cases showing the general purport of the terms "goods, chattels, and effects," when used in a general and unlimited sense, are very numerous, and so uniform in their character as scarcely to require enumeration here in any detailed form. In Cook v. Oakley, 1 P. Wms. 302, where a sailor, on shipboard, who without his own knowledge was in fact entitled to part of a considerable leasehold estate, in right of his father, made his will at sea and devised to his mother (if living) his rings, buttons, and chest of clothes; and to his loving friend G. (who was on board with him,) his red box, arrack, and all things not before bequeathed, and made him his executor, it was held that this did not pass the leasehold estate, but should be restrained to things ejusdem generis. But this case can scarcely be regarded as of much authority, since it seems to have been decided a good deal upon the consideration that the testator was not aware of the extent of his property, at the time of making his will, which would seem to be a very poor reason for restricting the operation of a residuary clause under the possible apprehension that had he known fully how much estate would pass under the general words he might have qualified them. This is always true of a residuary clause made many years before the testator's death. See Portman v. Willis, Cro. Eliz. 386. It is rather attempting to make such a will, as the testator probably would have made, or might have made, under other circumstances, than giving a legal construction to the one he did in fact make. And the same simpliciter, will carry the whole personal estate, as a gift of "all my effects," without more. But it is frequently used in a restricted sense, meaning "goods and movables," as in the common expression of "furniture and effects." It is here intimated that the particular sense is to be gathered from the context. In Campbell v. Prescott the word "whatever" was added to the word "effects," and this was held to exclude the restricted sense, and in Michell v. Michell, the addition of the words "that he shall die possessed of," was held to have the same effect. And remark holds true, not only of the early cases upon this subject, but upon many others. They are made to conform to some conjectural theory of the testator's probable intention, or rather presumable intention, had he understood himself fully, and not to the legal construction of the words used. This is true, to a considerable extent, of the early cases, in all countries. They seem to go more upon some indefinite apprehension of what the testator would now desire the court to do, than upon the fair construction of what he directed to be done. The following cases may be consulted as bearing upon the question of the construction of these general words in bequests of personalty. Ryall v. Rolle, 1 Atk. 165; Crichton v. Symes, 3 Atk. 61; Anon. 1 P. Wms. 267; Moore v. Moore, 1 Br. C. C. 127, 128; Kendall v. Kendall, 4 Russ. 360; Co. Litt. 118 a; Gower v. Gower, Amb. 612; s. c. 2 Ed. 201; Tilley v. Simpson, 2 T R. 659, n.; Boon v. Cornforth, 2 Ves. Sen. 277; 1 Jarman, (Eng. ed. 1861,) 715; 2 Wms. Exrs. (Am. ed.) 1060; Wrench v. Jutting, 3 Beav. 521; Collier v. Squire, 3 Russ. 467. If we correctly understand the comment of the Master of the Rolls upon the words of the will in this case, it presents an instance of surprising misapprehension upon a very simple question. The words of the will are, after certain specific classes of goods, "every other article belonging to me, both in and out of my house, and which may not be mentioned herein "; upon which the Master of the Rolls said, "The articles mentioned were household furniture, plate, china, books, and linen, and he could scarcely say of stock, that it might not be mentioned or included in the articles specified." And Mr. Jarman, (1 vol. 716,) refers to these words as containing the unanswerable reason for the decision. But the words of the will, "which may not be mentioned herein," have no reference to any doubt in the mind of the testator whether the residuum of articles, or property, intended by him to pass under the general words, had any likeness to what he had before enumerated or not. It was only adopting the ordinary formula of a residuary clause in a will, "all my other estate, not hereinbefore specified, or which may not be mentioned herein." |