[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 562
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 563
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 564 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 567 It is an established rule in the construction of wills, that unless a plain intention to the contrary appears, a general residuary clause operates upon, and carries to the residuary devisee all reversionary interests in lands owned by the testator at the time of making the will, not embraced in other dispositions, whether such reversionary interests are immediate or contingent and remote; and the rule is the same whether the estate of the testator was a reversion only, or the reversion was created by the devise in his will of a less interest than a fee, or arises from a contingent limitation of the fee which may be defeated by the non-happening of the event *Page 568 upon which the fee is limited (Doe v. Weatherby, 11 East, 322; Doe v. Fossick, 1 Barn. Ad. 186; Doe v. Scott, 3 Maule S. 300; Bowers v. Smith, 10 Paige, 193; Youngs v.Youngs, 45 N.Y. 254; Hayden v. Stoughton, 5 Pick. 528; 1 Jarman, 611.)
Where the residuary devisee is another than the heir, the heir is excluded from taking such reversionary interest, because there is an operative devise away from him. But the intention is the controlling consideration, and a particular interest, or estate, will not pass by a residuary clause when it appears from other provisions of the will that it was the intention of the testator to exclude such particular interest or estate from the residuary gift. (Strong v. Teatt, 2 Burr. 912; Hambleton v.Darrington, 36 Md. 434.) The intention of the testator to restrict the operation of the residuary clause, cannot, however, be deduced from the mere because of words in the will, denoting, that a particular interest or estate upon which the residuary clause is claimed to operate, was in the contemplation of the testator when the will was made, or from the fact that the reversion was a mere expectancy dependent upon the failure of issue or other improbable contingency. A general residuary devise carries every real interest, whether known or unknown, immediate or remote, unless it is manifestly excluded. The intention to include is presumed, and an intention to exclude, must appear from other parts of the will, or the residuary devisee will take.
The claim of the plaintiff as heir of the testator Robert Kermit, to the premises in controversy, is defeated by the application of the rule of construction to which we have referred. The separate devises of the premises in the seventh clause of the will to Laura F. Carow and Sarah Elizabeth Sanderson upon the death of the testator's wife, of a life estate to them respectively, and of the fee on their death to their issue then surviving, was not an absolute disposition of the whole estate of the testator in the land. The devisees for life were unmarried at the date of the will and at the death of the testator. The estates devised to the unborn issue of the life *Page 569 tenants were contingent remainders in fee, depending upon a double contingency, viz.: the birth of issue and their survivorship. There was left in the testator a contingent reversion in fee, expectant upon the determination of the life estates, and the failure of issue of the life tenants which was not embraced in the specific devises in the seventh clause. The life tenants died, after the death of the testator, without issue. Upon their death, the contingent reversion of the testator in the lands devised to them and their issue, was changed into an absolute fee, which not having been specifically devised, descended to the plaintiff as heir at law, unless it passed to the appointees of the testator's wife under the sixth clause of the will. We think that under the sixth clause the appointees of the wife took the reversionary interest of the testator in the lands and the fee upon the death of the life tenants. The trust created by the sixth clause comprehended all the rest, residue and remainder of the testator's real and personal property not disposed of by the previous clauses, and included the premises in controversy. It was in effect a trust for the management of the estate, and to receive and pay over the rents, profits and income to the testator's wife for life, and upon her death the trustees are directed "to assign, transfer and set over" the personal property and securities, and "all and singular my" (his) "real estate not herein and hereby otherwise disposed of," to the appointees of his wife, or in default of appointment, to her heirs and next of kin. The words "real estate" in legal signification include all interests in land, whether in possession, reversion or remainder. They are used in the statutes as co-extensive in meaning with lands, tenements and hereditaments. (1 R.S. 750, § 10, and 754, § 27.) The reversion in the testator, though contingent and remote, was real property, and was comprehended in the words "real estate" as used by the testator in the residuary gift. (See Jackson v. Parker, 9 Cow. 73.) The exception in the sixth clause from the operation of the power of appointment, of real estate not otherwise disposed of by the will, cannot reasonably be construed *Page 570 as excluding the reversionary interest in the land in controversy. The exception is not of any specific tract or parcel of land, but of real estate not otherwise devised. The only specific devises of the lands in question (except a devise upon the contingency of issue being born to the testator), are found in the seventh clause, and these devises left a contingent reversion in the testator. This contingent interest is not otherwise disposed of than by the sixth clause, and is therefore included in the residue upon which the power of appointment operates. The counsel for the plaintiff refers to the direction to the trustees, to "assign, transfer and set over" the personal estate and securities, and the real estate to the appointees of the wife, or to her heirs or next of kin, in default of appointment as indicating that the testator had in contemplation, and was dealing with estates in possession, and not with remote and contingent reversionary interests. These words were primarily and appropriately used with reference to the personal property and securities. But they are also applied to the real estate. The testator seems to have supposed that a transfer from the trustees to the appointees of the wife, or to her heirs of the real estate, was necessary to complete their title. While it may be admitted that the words referred to have a more precise and appropriate application to the delivery of the possession of real property, than to a conveyance of a remote and contingent interest, this is, we think, too slight a circumstance to justify a departure from the general rule of construction. It does not afford that plain evidence of an intent to exclude the reversion from the gift of the residue which the decisions require. The intention of the testator to dispose of all his estate is not left to presumption merely. He declares in the introductory clause of the will, that he was "desirous of making a suitable and proper disposition of such worldly estate as I may leave behind me." His intention to exclude the heir from any participation in his estate, except such part as his wife in her discretion might appoint, is also inferable from the will. While these circumstances are not decisive against the claim of the heir, as the heir takes, even *Page 571 against the intention of a testator, unless there is a valid gift of the estate to others, they are nevertheless entitled to some weight in construing a residuary clause; and when the meaning is obscure, they afford a clue to the interpretation.
The final point is not tenable. The rule that if the gift of a share or interest to one of several residuary legatees or devisees fails, the share of the residue itself so failing, does not go in augmentation of the residue to the other residuary legatees or devisees, but descends to the heir at law or next of kin of the testator, is founded upon a construction of the meaning of residue, which unexplained means that of which no effectual disposition is made other than by the residuary clause. (Skrymsher v. Northcote, 1 Swanst. 566.) But this rule has no application to the will in question, because the intention of the testator indicated by the language of the sixth clause was to vest the alternative fee in the lands devised by the seventh clause, in the appointees of the wife or her heirs, in the event of a failure of issue of the life tenants. The learned and elaborate opinion at the Special Term renders a more extended discussion here unnecessary.
The judgment should be affirmed.
All concur.
Judgment affirmed.