This appeal is from a decree of the orphans' court determining that appellants have no standing, as heirs at law of Elmer L. Haak, deceased, to file exceptions to the first and partial account of the decedent's widow and administratrix c.t.a. The propriety of the decree depends solely upon the interpretation to be given the provisions of the decedent's will relating to the disposition of that part of his estate not given to the widow.
Elmer L. Haak, a lumber dealer, died August 24, 1936, leaving to survive him his widow, Annie R. Haak, and collateral relatives consisting of one uncle and twenty-one cousins. The instrument which was duly probated as the decedent's last will and testament was in the form of a letter, addressed to the widow, and was dated January 4, 1936. After providing that the widow should share only "as the Law provides as if there were no Will, to avoid all discrepancy", the will provides that "the distributing half" should be divided as testator "will enter off and on in a book in this desk, and whatever writings you may find, to relatives etc.", and further that "If any remains, to be divided equally among Mary Leob and the yard employees who were in my employ at least two years at my death". With this instrument were offered for probate two sheets out of an *Page 95 account book containing memoranda, in testator's handwriting, consisting of a list of relatives and others, set against most of which were notations of various sums, the total of which approximates the whole of the half of the estate not given the widow. Probate of these memoranda sheets was disallowed and no appeal was taken from that decree.
At the audit of the account filed by the widow-administratrix in the court below, Mary Leob and the qualifying yard employees claimed that, in the absence of an effective disposition in favor of relatives, they were entitled to everything not given the widow; the collateral relatives, among whom are the appellants, resisted this claim, contending that there was an intestacy as to the "distributing half" and that they were entitled, as testator's heirs at law, under the intestate laws. The court below decided in favor of the former, and this appeal followed.
In deciding that Mary Leob and the yard employees were entitled to everything not given to the widow the court below said: "It is undoubtedly true that the testator had in mind at the making of the will an intention to provide for 'relatives' as he intended to enter in a book in his desk and possibly other writings but there is no evidence to warrant the inference that he ever made such provision and therefore the residuary clause is operative and under its provisions the residuary legatees are entitled to one-half of the estate. The testator made this will with the Wills Act of 1917 staring him in the face and when he inserted the residuary clause he must be deemed to have comprehended the beneficiaries thereunder were entitled to whatever part of the estate he had not disposed of in his will". In so holding the learned court below fell into error, the root of which lies in the assumption that the provision "If any remains, to be divided equally among Mary Leob and the yard employees", etc., is a true residuary provision. *Page 96
A residuary clause is one the language of which, when read in connection with the will as a whole, fairly manifests an intention to make disposition of everything which testator has not otherwise disposed of by the will of which it forms a part. If such intention is manifested, the provision will be given effect as a residuary clause, however technically inappropriate the language used may be and irrespective of its position with relation to the other provisions of the will. See Bricker'sEstate, 335 Pa. 300, and cases there cited. The plain words of the provision here under consideration, when read in connection with the other provisions of the will, manifest no such intention. The provision expresses merely a purpose to give Mary Leob and the yard employees such part of the "distributing half", if anything at all, as testator did not give to "relatives, etc." by a writing or writings thereafter to beexecuted. Unlike a true residuary clause, which is presently dispositive of everything not otherwise disposed of, such a provision is dispositive of nothing. No writings such as it is to be assumed were contemplated by the will, i. e., writings capable of operating as valid testamentary dispositions of property in favor of relatives, having been found, the situation here presented is not different in its legal aspects from that dealt with in Jerningham v. Herbert, 4 Russ. 388. There testatrix gave such of her jewels as should, at her death, be deposited in her jewel box at Messrs. R., to persons whose names should be found written on a paper contained in the box and bequeathed "all the rest" to her daughter. Two years before her death testatrix became the subject of a commission of lunacy and no jewel box was then, or at the date of her will, or at her death, deposited at Messrs. R. It was held that the will contained no present gift of the jewels, but referred to a future act to be done by the testatrix in order to complete her gift, and that, this future act being prevented by the subsequent lunacy, the intended gift of the jewels wholly failed. The rule *Page 97 of that case is well stated in 1 Jarman on Wills (7th Ed.), at page 442, as follows: "If the words are such as to point to a division into parts, and to amount to a gift of the individual parts, then, if one of the parts cannot be ascertained, the legatee of the other part is necessarily disappointed, since his part is undetermined, and the words are not sufficient to carry the whole to him".
Closely analogous to the present case is Hastings et al. v.Bridge et al., 86 N.H. 247, 166 A. 273. Testatrix in that case gave all her wearing apparel, jewelry, etc., to one Florence M. Hastings for distribution to persons named in a letter or memorandum of instructions which testatrix should leave addressed to her, and then provided: "Any of the articles not mentioned in said letter or memorandum of instructions I give and bequeath to the said Florence M. Hastings personally and if she is not living, to her children".* A memorandum subsequently prepared by testatrix enumerating about fifty gifts was offered with the will, but, like the memoranda in the present case, was denied probate. The court, in a well reasoned opinion by PEASLEE, C. J., held that Mrs. Hastings took nothing under the provision. The court said, inter alia: "The will plainly contemplated that the memorandum was to be a valid disposition of property — a part of the will. Since there is no such document, a less formal one cannot supply the deficiency in the will nor affect the disposition made by the will. . . . A valid testament includes two essential elements. There must be a sufficient designation of the beneficiary and of the property given to him. If either is in terms left to future designation the will is incomplete and ineffective. . . . In the present case the description of what is to go to Mrs. Hastings is incomplete. If no memorandum had been made, it could not *Page 98 be ascertained what the testatrix intended to give her. Manifestly, there was no intent to give her the whole, and, no separation having been made, the whole clause would be ineffective. Unless some further act of designation were performed, there was no gift. . . . The whole case comes to this: The testatrix said in her will, 'I give Mrs. Hastings that part which I do not give to someone else'; or, as more directly applying to her, 'such part as I do not subsequently say she shall not have.' The designation is incomplete." The reasoning of this decision is unanswerable, and it amply sustains our conclusions in the present case.
Decree reversed. Costs to be paid by appellees.
* For the full provision of the will see earlier opinion in this same case reported at 86 N.H. 172, 164 A. 906.