Perry Jarvis executed a will in 1917, devising to his second wife and his children by her, "all of my real estate, consisting of three certain tracts or parcels of land situated in Walton District, Roane County, West Virginia, containing in all about 109 acres." Mr. Jarvis died in 1937. Between 1917 and 1937, he acquired a tract of 64 acres (subject to certain reservations) and the surface of a tract of 38 acres, both in Walton District of Roane County. The children of his first marriage claim in this suit that he died intestate as to the two tracts acquired between the dates of his will and his death. The circuit court decreed against them.
Code, 41-3-1, provides: "A will shall be construed with reference to the estate comprised in it, to speak and take *Page 389 effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will." There can be no question but that in 1917, all of the real estate comprised in the will was only the three specific tracts Mr. Jarvis then owned, aggregating 109 acres. After 1917 he almost doubled the number of his tracts and his acreage. Can it be said in reason that if he had looked over the will of 1917 immediately before death in 1937, in the full possession of his faculties (as the statute presupposes), he would have taken the plain words, "three certain tracts * * * of land containing * * * 109 acres", to mean five certaintracts of land aggregating 211 acres? We think not. The statute does not require a strained construction. We are of opinion that the words he employed in 1917 to describe the real estate he then owned would have meant the same to him in 1937; and he would not have contemplated that the will of 1917 included the two tracts thereafter acquired. This conclusion is in line with our decision in McComb v. McComb, 121 W. Va. 53, 200 S.E. 49, wherein we held: "After acquired property does not pass under a specific devise when the description is not sufficiently broad to include the property in question."
The decree is reversed and the cause remanded.
Reversed and remanded.