nated person shall take the surplus of his estate.25 Such words as "rest," "residue," "remainder," are not indispensable.26 It is a well settled rule that a testator who makes a will intends thereby to dispose of his entire estate, and even partial intestacy is not favored.27 Therefore any words evincing a clear intent to dispose of the residue of the estate, are sufficient; and to prevent even partial intestacy, the presumption of law favors the residuary legatee except as to those beneficiaries particularly mentioned.28

§ 670. Who Are Residuary Devisees or Legatees.

Strictly speaking, the terms "devise" and "devisee" are used in connection with real property, while "bequest," "legacy" and "legatee" are used with reference to personalty. The context of the will, however, may show that the expressions have been inartfully employed, and a residuary legatee has been held to take the residue of both the real and personal property of the estate.29 The residue of the estate may go to a sole beneficiary, in which instance he would be appropriately called the residuary devisee and legatee; or the residue of the realty may be devised to one, while the residue of the personalty may

25 Estate of Upham, 127 Cal. 90, 59 Pac. 315; Morton v. Woodbury, 153 N. Y. 243, 47 N. E. 283; Prison Association v. Russell's. Admr., 103 Va. 563, 567, 49 S. E. 966; Jordan's Admr. v. Richmond Home, 106 Va. 710, 56 S. E. 730.

26 In re Striewig's Estate, 169 Pa. St. 61, 32 Atl. 83; Jordan's Admr. v. Richmond Home, 106 Va. 710, 56 S. E. 730.

27 Estate of Tompkins, 154 N. Y. 634, 49 N. E. 135. See § 232.

As to passing property acquired after the execution of the will, see §§ 233, 234.

28 Booth v. Booth, 4 Ves. Jun. 399, 407; Dulany v. Middleton, 72 Md. 67, 76, 19 Atl. 146; Sandford v. Blake, 45 N. J. Eq. 248, 17 Atl. 812; Prison Association v. Russell's Admr., 103 Va. 563, 49 S. E. 966.

29 See § 31.

pass to another, there would then be a residuary devisee and a residuary legatee. A residuàry devisee or legatee is one to whom the residuum of the personal or real property of the estate is left by will; the residue of the estate being what remains after all devises and bequests, and the claims, losses, charges and expenses, have been satisfied.30

To constitute a residuary devisee or legatee, there must appear from some provision of the will, in terms or by a true construction thereof, that the testator intended to pass to such beneficiary the residue of his real or personal estate.31 Where the persons who are to take the residuary estate are described, not by their names, but as "the several legatees and devisees hereinbefore named," there must be included all who were named, whether as unconditional or only as possible or contingent legatees or devisees. 32

§ 671. Residuary Devises and Legacies Usually Classed as Gen

eral.

Residuary legacies are classed as general.

Residuary devises have sometimes been classed differently from residuary legacies. In England a devise of all the remainder of the real estate of the

30 Matter of Goggin's Estate, 43 Misc. Rep. (N. Y.) 233, 88 N. Y. Supp. 557; Probate Court v. Matthews, 6 Vt. 269.

31 Henning v. Varner, 34 Md. 102.

32 Marshall's Exrs. v. Hadley, 50 N. J. Eq. 547, 25 Atl. 325, wherein the court says: "The words 'herein before named' constitute an essential and vital part of the description of the persons to whom

testator is specific.34 This

the testator intended to give his residuary estate, and so long as they stand the court must give them full effect, no matter how absurd or unreasonable such intention may appear to others to be."

33 Estate of Painter, 150 Cal. 498, 11 Ann. Cas. 760, 89 Pac. 98.

34 Lancefield v. Iggulden, L. R. 10 Ch. App. 136; Gibbins v. Eyden, L. R. 7 Eq. 371; Phillips v. Low.

rule is followed in some of the American states 35 provided that no realty acquired after the making of the will is included therein,36 unless such after-acquired property is so described as to admit of its identification.37 However, the weight of American authority is that a devise of the residue or remainder of the real property is general.38

There is a marked distinction between the purposes shown by a specific devise of real estate, and a devise by way of residue; the first shows that the testator intends the devisee shall have a thing certain, the other that the devisee shall have something which is unknown or which can not be described with certainty.39

V.

(1892) 1 Ch. 47; Crombie Cooper, 22 Grant Ch. (U. C.) 267, 24 Grant Ch. (U. C.) 470.

35 Henderson v. Green, 34 Iowa 437, 11 Am. Rep. 149; Rice v. Rice, (Iowa) 119 N. W. 714.

Where, out of 135 acres of land belonging to the testator, he gave 20 acres to an adopted daughter and 30 acres to a nephew, and gave "the balance" of all his property to his wife, the gift to his wife was equivalent to a spe cific devise of the 85 acres remaining.-Estate of Pittman, 182 Pa. St. 355, 38 Atl. 133.

36 Kelly v. Richardson, 100 Ala. 584, 13 So. 785; Wallace v. Wallace, 23 N. H. 149; Estate of Pittnan, 182 Pa. St. 355, 38 Atl. 133; Floyd v. Floyd, 29 S. C. 102, 7 S. E. 42.

37 Kelly v. Richardson, 100 Ala. 584, 13 So. 785.

Where a testator gave the "rest

and residue" of his property in trust to executors, except certain legacies, to manage and control for the benefit of his infant daughter until she reached the age of twenty-one, when he directed it to be delivered to her, there is an express devise to her of his real estate and she does not take as a mere residuary legatee.-Maybury v. Grady, 67 Ala. 147.

38 Estate of Woodworth, 31 Cal. 595; Estate of Painter, 150 Cal. 498, 11 Ann. Cas. 760, 89 Pac. 98; Reid v. Corrigan, 143 Ill. 402, 32 N. E. 387, reversing Corrigan v. Reid, 40 Ill. App. 404; Darnall v. Adams, 13 B. Mon. (52 Ky.) 273; Bradford v. Haynes, 20 Me. 105; Blaney v. Blaney, 1 Cush. (Mass.) 107; Farnum v. Bascom, 122 Mass. 282; Anderson's Exrs. v. Anderson, 31 N. J. Eq. 560.

39 Anderson's Exrs. son, 31 N. J. Eq. 560.

V. Ander

8 672. Position of the Residuary Clause.

The residuary clause usually follows all other devises or bequests, but the mere fact that it may precede particular devises or bequests does not rob it of its character as such. The position of the residuary clause may aid the court in arriving at the intention of the testator, but the intention of the testator prevails irrespective of the portion of the will where a residuary clause may be inserted.40

§ 673. Describing Property in the Residuary Clause, Effect Of. It is unusual that a testator should attempt to create a specific bequest by language employed in the residuary clause, but the testator's intention must control, and where it is clear that he so intended, the provision must be given effect." The general rule is that the enumeration of specific articles in the residuary clause will not make a residuary legacy specific as to such property. Where, however, the language used indicates an intention to make two distinct gifts, one of specific property and the other of the residue, the specific legacy is not rendered general by the fact that there is a gift of the

40 Dobson v. Bowness, L. R. 5 Eq. 404, 408; Wyman v. Woodbury, 86 Hun (N. Y.) 277, 33 N. Y. Supp. 217; affirmed, Morton v. Woodbury, 153 N. Y. 243, 47 N. E. 283; In re Dickson's Estate, 7 Pa. Dist. Rep. 699; Prison Association v. Russell's Admr., 103 Va. 563, 49 S. E. 966.

A residuary legacy may be in the form of a bequest of the entire estate of the testator subject to "the bequests hereafter made." -Drake v. Ellman, 80 Ky. 434.

41 Fielding v. Preston, 1 De Gex & Jones 438; Pickup v. Atkinson, 4 Hare 624; Estate of Painter, 150 Cal. 498, 11 Ann. Cas. 760, 89 Pac. 98; England v. Vestry of Prince George's Parish, 53 Md. 466; In re Kemp's Estate, 169 Mich. 578, Ann. Cas. 1913D, 1042, 135 N. W. 270; Le Rougetel v. Mann, 63 N. H. 472, 3 Atl. 746; Bailey v. Wagner, 2 Strobh. Eq. (S. C.) 1; Fite v. Beasley. 12 Lea (Tenn.) 328; Stehn v. Hayssen, 124 Wis. 583, 102 N. W. 1074.

42

residue to the same person. And the gift will be held specific if the property is so described as to distinguish it from the residue, as by the use of such words as "together with," "as well as," "also," and "including."'43

§ 674. Residuary Clause, Descriptive Words: "Rest," "Residue," and "Remainder."

The words "rest" and "residue" are sufficiently comprehensive to include any interest in the estate of the testator not previously disposed of," such words, in the absence of language showing a contrary intent, are construed to include all the estate remaining after the payment of charges, debts, and particularly legacies, including statutory allowances for maintenance of the widow, and the like. They naturally embrace all property of

42 Estate of Painter, 150 Cal. 498, 11 Ann. Cas. 760, 89 Pac. 98.

Where the testator directed that "out of the residue of my estate then remaining," the sum of $30,000 should be set aside as a separate trust, the income of which was to be applied in a certain way, and disposed of the corpus of the fund on the death of the beneficiaries, it was held the $30,000 legacy in trust was not a true residuary legacy, the construction being that "out of the residue" does not make a bequest residuary where later in the will there is a real residuary clause.Matter of Union Trust Co., 97 Misc. Rep. (N. Y.) 581, 161 N. Y. Supp. 954.

43 Estate of Painter, 150 Cal. 498, 11 Ann. Cas. 760, 89 Pac. 98; Weed v. Hoge, 85 Conn. 490, Ann. Cas. 1913C, 543, 83 Atl. 636; Estate of Corby, 154 Mich. 353, 117 N. W. 906; Estate of Kemp, 169 Mich. 578, Ann. Cas. 1913D, 1042, 135 N. W. 270.

44 Holmes v. Mackenzie, 118 Md. 210, 84 Atl. 340.

45 Smullin v. Wharton, 86 Neb. 553, 125 N. W. 1112.

The words "rest, residue and remainder of my estate" have been construed to embrace what is left of the testator's estate after foregoing provisions of the will have been complied with.-Slade v. Talbot, 182 Mass. 256, 94 Am. St. Rep. 653, 65 N. E. 374.