Two questions are presented for decision: (1) Did the residuary clause of the codicil to Eliza Appleton Haven's will include her interest in her mother's estate? (2) Did it give the whole residue, or only the whole provided it did not exceed ten thousand dollars?
1. Did the phrase, "my residuary property," as used in the codicil, include any portion of the mother's estate? By the mother's letter of instructions the residue of her estate was given to relatives. By the execution of the power given to the daughters, it was to be added to their residuary property, to be disposed of according to directions in their wills. A few weeks after the execution of this power they each made a will, and each provided that her interest in the mother's estate should go to her trustees or the survivor of them, to be disposed of according to her letter of instructions, as modified by the daughters. In the will of each daughter the residue of her own property was given to three trustees, two of whom were of those appointed by the mother and one was not. Although the residue of the daughters' property was to go to the same legatees as the residue of the mother's, it went through the hands of different trustees. The daughters treated the residue of the mother's estate as something distinct from their own property, and understood that their interests in it were disposed of by the clauses affirming her letter of instructions as modified by them. The language used in this paragraph of Eliza Appleton Haven's will, the fact that she therein assumed to dispose of all her interest in her mother's estate as a thing separate and distinct from the "residue of my property" which she disposed of in the next paragraph, shows that she did not understand that her residuary clause applied to any part of her mother's estate. When she made the codicil she reaffirmed the provision as to her interest in her mother's estate, declared that her mother's and sister's wills were parts of her own, and then made a change in the disposition of "my residuary property."
From the time the mother made her will until Eliza Appleton Haven made this codicil, one common plan for the disposition *Page 418 of the residue of these three estates had been followed. It was to go to the two Haven families. While this would not control a different disposition subsequently made, it is important evidence to be weighed in determining the meaning of a provision whose import is in doubt. The residue of the estate of Eliza Wentworth Haven goes to the descendants of John Haven and Nathaniel Appleton Haven.
2. By the last paragraph in the codicil to Eliza Appleton Haven's will, she gives to the trustees of Smith College "my residuary property of whatever amount it may be," and provides that if it is three thousand dollars or over it shall be allowed to accumulate until it amounts to ten thousand dollars. The residue is about thirty-seven thousand dollars; and it is argued that only ten thousand dollars passed by this provision, and that she died intestate as to the balance. But the words, "of whatever amount it may be," have so plain a meaning that they are not limited by the provision that the fund shall accumulate until it amounts to ten thousand dollars. It is probable that she then thought that the residue was less than ten thousand dollars. To her mind, no less sum than that would be a suitable permanent fund. If it was more, there was no occasion for any provision as to accumulation. The codicil was made some time before her decease, and, as she was receiving a large income, it is more than probable that her assumption that her residue would not exceed ten thousand dollars was at that time well founded. But as time went on and her estate increased, she chose to let this provision stand as it was.
While there are cases which hold that a clause purporting to dispose of the residue may not transfer all the testator's property not otherwise disposed of, it will be found that they are based upon evidence showing that the testator could not have had all his property in mind. No such facts appear in this case, and the only construction that will give effect to the testatrix's words, "of whatever amount it may be," is one that disposes of the whole residue. The trustees of Smith College take the residue of the individual estate of Eliza Appleton Haven.
Case discharged.
PIKE, J., did not sit: the others concurred. *Page 419