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every description, including any void or lapsed legacies. 47

The expression, “the said residue and remainder,” bas been construed to mean the same as the word “remainder" in the sense of “balance of," "what is left," or "what may remain."48 The word “remainder'' in devising “one undivided quarter part of the said remainder of my estate,” is not to be construed in its technical sense, but as referring to all the remaining estate after the payment of debts, funeral charges, expenses, and the like. 19 Where the bequest is of "whatever remains of money,” it carries the general residuary personal estate, as does also a bequest of “all the money that remains after paying my former bequests, debts, and funeral expenses,” 51 and also a bequest of all money that remains after all debts are paid.62


8 675. The Same Subject: “Balance."

The intention to dispose of the residue of the estate may be evidenced by the word “balance."53 The word “balance” may be used as the equivalent of “rest and

46 Bragaw v. Bolles, 51 N. J. Eq. 84, 25 Atl. 947.

47 Farrell v. Farrell, 12 Ont. Law Rep. 580; Hulin v. Squires, 63 Hun (N. Y.) 352, 18 N. Y. Supp. 309; affirmed, 141 N. Y. 560, 36 N. E. 343.

As to real property acquired after the making of the will, see $$ 229-234.

48 Potts V. Breneman, 182 Pa. St. 295, 37 Atl. 1002.

49 Angell v. Angell, 28 R. I. 592, 68 Atl. 583.

The phrase "estate remaining” has been held to cover what was left after special directions bad been executed, its technical sense being disregarded.-Chase v. Cartright, 53 Ark. 358, 22 Am. St. Rep. 207, 14'S. W. 90.

50 Dowson v. Gaskoin, 2 Keen 14, 1 Jur. 669.

51 In re Bailey, 2 Ont. Week. Rep. 888.

52 Paul v. Ball, 31 Tex. 10.

53 Lynch v. Spicer, 53 W. Va 426, 44 S. E. 255,

residue, 1954 “remainder,”:55 “residue,':56 or what remains or is left over.57 Where a testator's will directed the conversion of real estate and “the balance of my estate (after payment of a specified legacy) to be equally divided among my heirs," the court held that by the expression, "the balance of my estate," the testator meant his entire estate including the proceeds from the conversion of the real property.58


8 676. The Same Subject: "Not Otherwise Disposed of."

It can not be said that the words “not otherwise disposed of,” render a residuary devise specific in its terms. Such words express no other intention than that which is necessarily implied in every residuary devise or bequest. If, after disposing of a part of his estate, the testator devises and bequeaths all the residue without any allusion to previous dispositions in his will, it is clearly his intention that the residuary clause shall operate on his estate not otherwise disposed of by his will.59

54 In re Thompson's Estate, 237 Pa. St. 165, 85 Atl. 104.

"All the balance of my property” is equivalent to saying the “rest and residue of my property." --Cambridge v. Rous, 8 Ves. Jun. 12; Fite V. Beasley, 12 Lea (Tenn.) 328.

55 Lopez v. Lopez, 23 S. C. 258.

56 Brooks v. Brooks, 65 Ill. App. 326; Davis v. Hutchings, 15 Ohio Cir. Ct. Rep. 174, 8 0. C. D. 52; Hulin v. Squires, 63 Hun (N. Y.) 352, 18 N. Y. Supp. 309; affirmed in 141 N. Y. 560, 36 N. E. 343.

57 Brohm v. Berner, (N. J. Eq.) 77 ALL 517.

58 Welsh v. Crater, 32 N. J. Eq. 177.

59 Cunningham's Devisees V. Cunningham's Heirs, 18 B. Mon. (Ky.) 19, 22, 68 Am. Dec. 718.

A bequest of "any money not mentioned in the aforesaid bequests, that may be in my possession at my death, after the payment of my debts, funeral and testamentary expenses," includes the whole residuary personal estate, even where it is followed by specific gifts of books, plate, furniture, etc.-In re Egan, (1899) 1 Ch. 688.

8 677. Residuary Clause: Construction Controlled by Inten

tion: Expressions Considered. The word “residue," or the like, is not conclusive.6o It is a rule of construction that where words general in their nature follow those of a special or particular character, the general words are limited by the particular words unless a contrary intent appears from the whole of the instrument. In construing a will, however, the tendency is to give to language not technical its ordinary and grammatical meaning, but not to allow grammatical construction to defeat the intention of the testator.61 The intention is to be drawn from the language of the instrument. Where a testator uses the word "devise" and says "all the rest and residue of my property, personal or mixed, wheresoever situated," the words “personal or

' mixed” will be held to qualify and define the kind of property intended to be disposed of, and no broader scope will be given to them than the usual technical meaning conveys.62 And a bequest of all the “rest, residue and remainder of the moneys belonging to my estate at the time of my decease" includes only cash.63

The word “money” has been held to include real property. Thus where a will inartfully drawn, in which the word “devise" was technically misused, stated that the

60 In re Pittman's Estate, 182 Eq. 776, 90 Am. St. Rep. 480, 48 Pa. St. 355, 38 Atl. 133.

Atl. 586. See, also, White v. Kauff. A bequest of $30,000 “out of man, 66 Md. 89, 5 Atl. 865. the residue of my estate then re- A bequest of “all the rest, resimaining" to be set aside as due and remainder of my personal separate trust, was held not to estate" is a specific legacy of only make the bequest residuary. the personal estate, and does not Matter of Union Trust Co., 97 include the real estate.--Estate of Misc. Rep. (N. Y.) 581, 161 N. Y. Alabone, 75 N. J. Eq. 527, 72 Atl. Supp. 954.

427. 81 See $ 50.

Mann, 14 Johns. 62 Miller y. Worrall, 62 N. J. (N. Y.) 1, 7 Am. Dec. 416.


63 Mann


purpose of the testator was to dispose of his entire estate, real, personal and mixed, of which he might die seised, a bequest of “the balance of all my money” was held to have been intended to include the residue of the estate, both real and personal.64 But the general rule is that an introductory clause in a will, although expressing the testator's intention to dispose of his entire estate, does not relieve him from the necessity of making such an actual disposition, and such introductory clause can not enlarge a disposition expressed in clear and unambiguous terms.65

§ 678. As to Real Property Acquired After the Execution of

the Will Being Covered by the Residuary Clause. At common law a devise of real property was viewed as a conveyance, and lands acquired by the testator after the execution of his will did not pass thereunder, irrespective of a residuary devise.66 This was subsequently changed by statute in England,67 and the general rule in the United States is that a testator may dispose of all the property, real or personal, he may possess at the time

64 Estate of Miller, 48 Cal. 165, Real estate held not to pass 22 Am. Rep. 422.

under a clause disposing of "all Where a testator, being pos- my estate, personal or mixed," sessed of both real and personal although the will contained an in. estate, does not confine himself to troductory clause showing an inthe disposition of his personal es- tention to dispose of "such estate tate, and names a designated per- as it has pleased God to entrust

as his “residuary legatee," with me."-Spurrier v. Hobbs, 68 not only the personal but the real W. Va. 729, Ann, Cas. 1912B, 342, estate of the testator will pass 70 S. E. 760. to such residuary legatee.- Dann 66 See $ $ 26-29. v. Canfield, 197 Mass. 591, 14 Ann. 67 The statute of 1 Vict., ch. 26, Cas. 794, 84 N. E. 117.

allowed devises of after-acquired 65 Spurrier v. Hobbs, 68 W. Va. real property. See $$ 30, 229. 729, Ann, Cas. 1912B, 342, 70 S. E.


of his death, no matter when acquired.88 It is, however, the intention of the testator which controls,6affected in some jurisdictions by statute. 70


§ 679. What Passes Under Residuary Devises and Bequests.

The residuary clause in a will necessarily furnishes the most important evidence of the intention of the testator on the question of marshalling assets, because it disposes of the surplus remaining after satisfying the other provisions of the will. It is natural to presume that the testator intended to charge upon the residuary bequests all the deficiencies in paying debts and legacies. The intent is not expressed, but may be presumed because in giving the surplus he gives only what remains after his special benefactions and the lawful demands against his estate are satisfied." It is only what remains after all the debts and paramount claims of the estate are satisfied, that passes to the residuary legatee, and he can not call upon either general or specific legacies or devises to abate in his favor even if the residue be exhausted.72

8 680. The Same Subject: Presumptions.

The presumption of law is always against partial intestacy, and a construction avoiding such a condition will be favored whenever possible.73 This presumption,

68 Early and present rule in the 72 Martin, In re, 25 R. I. 1, 54 United States as to after-acquired Atl. 589. real property passing under a gen. 73 In re Blake's Estate, 157 Cal. eral residuary clause. See $$ 230- 448, 108 Pac. 287; Skinner 234.

Spann, 175 Ind. 672, 93 N. E. 1061, As to the date from which a 95 N. E. 243; Wagner v. Wagner, will speaks, see $$ 235-239.

244 Ill. 101, 18 Ann. Cas. 490, 91 69 See $ $ 232, 233.

N. E. 66; Northern Trust Co. v. 70 See $ 234.

Wheaton, 249 Ill. 606, 34 L. R. A. 71 Estate of Pittman, 182 Pa. (N. S.) 1150, 94 N. E. 980; Jones St. 355, 38 Atl. 133.

v. Gane, 205 Mass. 37, 91 N. E.


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