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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 6 I think this judgment should be affirmed. The case seems to me a reasonably clear one. The whole estate of the testatrix was quite large and she made distinct *Page 10 and specific devises of certain and separate portions of her real estate to different members of her late father's family, making provision at the same time in regard to each of them (with one or two probably inadvertent exceptions), for possible lapse or failure to take, so that in such case the devise should fall into and be disposed of as part of her residuary estate. Having made the provisions which are set forth in the will, up to the seventh clause, she then treated of the whole balance of her estate and provided for its substantially immediate sale. In describing that portion of her estate which remained after the disposition which she had made of her property in the preceding clauses of her will, she speaks of it in the seventh clause as "all the rest, residue and remainder" of her estate, both real and personal. By the use of such language it seems to us she did not mean that this portion of her property which she was providing should be sold and converted into cash, was to be regarded as her "residuary estate," within the meaning of that term as used by her in the third and other clauses of her will preceding theseventh. On the contrary, it was language which she was using for the purpose of creating a fund out of which was to come the payment of specific legacies to various persons and institutions. It is true she provided that the residue of her property should be sold, but it was only to create this fund. In the seventh clause the testatrix named certain persons and institutions who (out of these proceeds of sale) should be paid the sum specified, and she then provided in the eighth clause for the payment of the specific legacies therein named out of the balance of the proceeds of the sale ordered by her. All these specific legacies named in the seventh and eighth clauses of the will might be paid out of this fund and a balance still remain. Unless some disposition were made of a possible residuum, the will did not provide for a complete disposition of her property. What she called her "residuary estate" in one part of the seventh clause might, therefore, in that event, be to some extent undisposed of and there might be danger of the testatrix, as to such residue, dying intestate. The language now alluded to and contained *Page 11 in the latter part of clause eight prevents the happening of this event, for it disposes of "all the rest and residue of my said residuary estate not herein otherwise disposed of," by giving the same to the legatees therein named. Undoubtedly, when the testatrix here uses the expression "all the rest and residue of my said residuary estate not herein otherwise disposed of," she refers to that portion of her estate which was the proceeds of the sale of the property directed to be made by virtue and under the provisions of the seventh clause of the will of the testatrix, and which was in some sense her residuary estate, and these four persons would not, under that language alone, take this fund. But this last provision in clause eight makes a true residuary estate, and these are true residuary legatees, because in addition to language which gives them the residuum of that property, they would, in the contingency specified, take the property described in the preceding clauses by virtue of the directions therein contained. The residuary estate referred to by the testatrix in the clauses preceding the seventh is, as we think, the residuary estate which she assumes will remain after the payment of these specific legacies referred to in theseventh and eighth clauses of the will. I have no doubt that such was the intention of the testatrix. She undoubtedly expected that her estate would prove sufficient to pay all those specific legacies which she provided for in the seventh and eighth clauses of her will. It cannot be supposed that she sat down and went through the form of disposing of property by will which she believed at the same time would be insufficient to pay such legacies. No such foolish and useless intent should be imputed to her. She believed that there would still be left a sum unprovided for, the disposition of which was to be made by this final provision already alluded to and which would dispose of a true and final residuum. Assuming that the testatrix supposed that the fund to be created from the sale of her property would be sufficient to pay these various legacies what other estate would exist than that which would remain after such payments? What other estate could she mean *Page 12 when speaking of her "residuary estate" in the second, third and other clauses preceding the seventh, except the estate which she was giving to these residuary legatees named in the last portion of the eighth clause? In a certain sense that portion of the estate she ordered sold in the seventh clause was a residuary estate, because she directed all of the estate to be sold not heretofore disposed of. Out of a sale of this estate which she thus describes she provides a fund for the payment of specific legacies, and the residue to these four persons. But when she is providing for a possible failure of any of the various devises given in the second, third and other clauses, and directs that they shall fall into and form part of her residuary estate, to be disposed of as that estate is disposed of, I cannot doubt that in such case the residuary estate she speaks of and which she has in mind is that which she assumes will exist after payment of legacies, and which will go to these four residuary legatees above named. In the two trusts created by her in the seventh clause, there was a life tenant in each for whom the particular trust was created, and that life tenancy might remain for years, and it certainly cannot be believed that the testatrix had in mind a possible failure of assets to pay legacies, and the falling in of a life estate years after her death, and the application of the fund towards the satisfaction of these specific legacies. And it is to be noted that these two trusts are created in this very seventh clause where it is claimed the real residuary estate is therein provided for. The trust funds are raised out of a sale of the "rest, residue and remainder of" her estate, and yet she directs those trust funds after the death of the cestui que trust to be disposed of as part of her "residuary estate." Is it not plain that she means by those words, that residuary estate mentioned in the latter part of clause eight? This construction adds strength to that contended for as the proper one in the third clause.
Various other reasons I think suggest themselves for the construction we give to the words "residuary estate" when used in the clauses of the will preceding the seventh clause, but it is not necessary to refer to them in detail. We cannot say, as a matter *Page 13 of law, that testators always mean precisely and definitely the same thing when they use the same expression in different parts of their wills. It is a good rule to say that generally they do. It is always, however, a question of intention, and that intention the context or the facts surrounding the subject may show to be different in different places, although the same expression may be used in both. By virtue of the provisions made in the third clause of this will the fund therein spoken of must go to the four persons named in the latter portion of theeighth clause and in the codicil as residuary legatees, because I have no doubt that the testatrix so intended by the use at that time of the expression "residuary estate." Under this construction the charitable institutions have no title to any portion of this fund.
I have read the various briefs of the counsel who have appeared for these institutions and filed briefs in this court. They are exceedingly able presentations of their views. Without assuming to answer at length many of the objections to our construction of the will of the testatrix which are therein urged, we think none of them is tenable and that the judgments of the courts below should be affirmed, with costs to the plaintiff and the guardiansad litem of the infant defendants, payable out of the fund.
All concur.
Judgments affirmed.