that these terms of succession are used to | alty and devises of real property, and make mark the extent of the interest thus intended to be conveyed to the legatee or devisee, and are therefore words of limitation merely." 2 Redfield on Wills, 160.

The same rule is stated in numerous authorities in support cited in 18 Am. & Eng. Enc. of Law, p. 754. See, also, Jackson v. Alsop, 67 Conn. 249, 34 Atl. 1106; Maxwell v. Featherston, 83 Ind. 339; Keniston v. Adams, 80 Me. 290, 14 Atl. 203; Kimball v. Story, 108 Mass. 382; Wood v. Seaver, 158 Mass. 411, 33 N. E. 587; Hand v. Marcy, 28 N. J. Eq. 59; Kimball v. Chappel (Sup.) 18 N. Y. Supp. 30; In the matter of Wells, 113 N. Y. 396, 21 N. E. 137, 10 Am. St. Rep. 457; Moss v. Helsley, 60 Tex. 426. In the case of Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, 128 S. W. 581, Ann. Cas. 1912A, 540, it was urged that the use of the words "and assigns forever," enlarged the estate, which otherwise would have been restricted by the use of the words "bodily heirs." But this court held, following other decisions cited in the opinion, that the word "assigns" was to be construed in a technical sense, and that it only imported "that the estate may be transferred, and cannot operate to enlarge the grant or defeat its express limitations."

Our conclusion, therefore, is that the devise to Mrs. Darby in the will lapsed, and that the property, the same as that devised in the codicil, either fell within the residuary clause or descended to the heirs at law of the testatrix.

a will speak from the date of the testator's death and convey after-acquired real estate as well as personalty; and, where those statutes have been put into effect, the rulings have been that lapsed legacies and devises fall into the residuary clause, unless a contrary intention on the part of the testator is expressed in the will. The rule and its changes are very clearly stated in the following excerpt from the opinion of the Indiana Supreme Court: "It is said, however, that there exists an important distinction between a void or lapsed bequest of personal estate and a void or lapsed devise of real estate, which obtains both in England and America in this: That the former falls into the residue, and the latter goes to the heirs. The reason generally assigned for such distinction has been the different operations of a will upon personal and real estate. It is said that as to personal estate the will would operate upon all the personal estate held by the testator at the time of his death; while as to his real estate the testator could only devise such as he owned at the time of his will. It is certain, we think, that the reason thus given for the supposed distinction has long since ceased to exist, if it ever existed in this state. Here the testator's will of personal estate must be executed with precisely the same solemnity and formality as the will devising real estate; and there is no perceptible or practical difference in the operation of a will upon personal and upon real estate." Holbrook v. McCleary, [3] The remaining question relates to the 79 Ind. 167. And the Supreme Court of Masdevolution of the property described in the sachusetts, speaking through Justice Dewey, lapsed devises to Mrs. Darby. Did it fall gives the following explanation of the changwithin the clause giving the residuum of the es in the law on the subject: "With us all estate to appellant D. F. S. Galloway? The ground for any such distinction has long residuary clause is general in its terms, and since been done away with. Our whole syscovers all property of every kind not other- tem since the enactment of the Revised Statwise disposed of in the will. At common utes (chapter 62, section 3) has been to carry law there was a distinction made, with re- out the principle that devises of real estate spect to the operation of the residuary clause and legacies of personal estate were to be of a will, between bequests of personalty placed substantially upon the same footing and devises of real property, the English as to the extent of the power to devise and courts holding that lapsed legacies fell into the formalities required in the execution of the residuum, unless otherwise directed in the testamentary instrument." Thayer v. the will itself; but that a devise of real Wellington, 91 Mass. (9 Allen) 283, 85 Am. estate did not go to the residuary devisee. Dec. 753. For other cases announcing the This rule was based upon another distinc- same changes in the law, see Molineaux v. tion arbitrarily made by the English courts Raynolds, 55 N. J. Eq. 189, 36 Atl. 276; Esthat as to personalty a will was deemed to tate of Upham, 127 Cal. 90, 59 Pac. 315; speak from the date it took effect-i. e., Drew v. Wakefield, 54 Me. 291; Reeves v. from the date of the testator's death-and Reeves, 5 Lea (Tenn.) 653; Youngs v. therefore included property acquired by the Youngs, 45 N. Y. 254; Jackson v. Alsop, 67 testator after the execution of the will, but Conn. 249, 34 Atl. 1106; West v. West, S9 that, as to real estate, the will was deemed Ind. 529. We have no statute on this subto speak only from the date of its execu- ject specifically abolishing the rule of the tion, and did not include after-acquired prop-common law as to the distinction in the opererty. The rule of the common law has been ation of wills between personalty and real changed in England by the Statute of Vic- estate. But in the case of Patty v. Goolsby, toria (1837), and in most of the American 51 Ark. 61, 9 S. W. 846, it was decided states, so as to completely sweep away the that the course of legislation here has swept

deemed to speak from the date of the testa- | disposed of, but everything that in any event tor's death as to real estate as well as to turns out not to be well disposed of. A prepersonalty and carries after-acquired proper-sumption raises for the residuary legatee as ty, both real and personal. In that case the against every one except the particular legcourt, speaking through Special Justice Sol. atee, for the testator is supposed to give his F. Clark, said: "We are not aware that the personalty away from the former only for question has ever been directly before this the sake of the latter. It has been said that court, nor has there been any legislation in to take a bequest of the residue out of the this state in terms changing or abolishing general rule very special words are required, the English law on the subject. But a course and accordingly a residuary bequest of propof legislation was adopted at an early date erty 'not specifically given' following various wholly inconsistent with it, and which has specific and general legacies will include certainly swept away the principles or lapsed specific legacies." 2 Jarman on Wills, grounds upon which the rule has ever been p. 716. The rule sustained by a long list of understood to be predicated. * * Con-adjudged cases is thus stated by the Cyclo

sidering the great changes in the policy as well as the formalities in alienating and assuring title to real estate as to what they were when the English rule on this subject originated and prevailed, we cannot see, notwithstanding the common law has never been changed by any positive statute, any reason why a will should not speak from the death of the testator as to real as well as personal estate, and we are therefore of the opinion, and so hold, that the testator being seised and possessed of said lands at the time of his death they were included in his will and were conveyed thereby." That decision established here a state of the law similar to that of other jurisdictions where changes in the common law on this subject have been brought about by express statutory enactments. It necessarily and logically follows from the application of the principles there announced that lapsed devises of real estate fall into the general residuary clause, unless a contrary intention of the testator is clearly expressed in the will.

pedists of the Law: "The residuary clause passes all the property of the testator that is not otherwise disposed of by the will, unless the words used show an intention to exclude from the operation of the residuary clause some part of the estate; it being the rule that a residuary clause will be liberally construed to prevent intestacy. This includes property acquired after the will was made, if it appears that the testator intended his will to operate on after-acquired property, and legacies and devises that lapse or otherwise fail for any reason." 18 Am. & Eng. Ency. of Law, p. 724. In Lovering v. Lovering, 129 Mass. 97, the court said: "A general residuary gift carries all property which is not otherwise disposed of by the will, and includes lapsed legacies and all void legacies. In this case the residuary gift was 'all the rest, residue and remainder of my estate, real and personal, of every nature and description.' The fact that he specifies certain remainders and reversions as included in the general description [4] It is insisted with much earnestness does not limit or narrow it." In the Matter that the rule announced in Patty v. Goolsby, of L'Hommedieu, 32 Hun (N. Y.) 10, the folsupra, was mere dictum, and should not be lowing statement of the rule is given: "It is binding on us now as a precedent. We can- a settled rule of construction that a residunot agree with counsel that the opinion on ary clause carries all which is not legally that point is obiter dictum. That particular disposed of by the will, unless a contrary inquestion was elaborately argued in the brief tention is manifest by the will itself. Such on one side, and seems to have been care- an intention cannot be deduced from the fully considered by the court. If the court mere absence of words or that the testator had reached a different conelusion upon that failed to provide for the contingency upon question of law, it would have been decisive which the lapse was occasioned. A testator of the issue between the parties. In other is supposed to have given away from the words, the case could have turned entirely residuary legatee only for the sake of the upon the decision of that question. There- particular legatee." Authorities need not fore, it cannot be regarded as dictum mere- be multiplied on this point. ly because it was found necessary to consider another question in consequence of the conclusion reached by the court on that question. Besides, the case was a carefully considered one, and has undoubtedly become a rule of property in this state. We decline to overrule it or to discredit it.

It is argued that the language of the will prevents the operation of the residuary clause as a general one, and evinces a specific intention on the part of the testatrix not to include lapsed legacies. Counsel invoke a strict construction of the language of the residuary clause on the ground that a [5] Now, turning to the question of lapsed presumption should not be indulged of an legacies at common law, which must now be intention on the part of the testator to cut considered as the established rule also as to the heirs off from the lapsed devises, unless devises of real estate, we find little, if any, the intention is made clear by the language conflict in the authorities. "A residuary of the will. While it is sometimes said that gift of personal estate," says Mr. Jarman, an intention to disinherit lawful heirs is

and explicit language to that effect, yet inclined very decidedly against adopting any there are other presumptions not to be over-construction of wills which would result in looked. In the construction of wills there is partial intestacy unless absolutely forced always a presumption against partial intes-upon them. This has been done partly as tacy, unless such an intention clearly ap- a rule of policy perhaps, but mainly as one pears from the language used in the instru- calculated to carry into effect the presumed ment. Booe v. Vinson, 149 S. W. 524; 2 intention of the testator, for the fact of Redfield on Wills, 116. The presumption making the will raises a very strong preagainst intended intestacy leads to a liberal, sumption against any expectation or desire rather than to a restrictive, construction of on the part of the testator of leaving any the residuary clause in the will, in order to portion of his estate beyond the operation prevent partial intestacy. "Where the lan- of the will. Hence, where a general residguage of the residuary clause is ambiguous," uary bequest was accompanied with expressays the New York court, "the leaning of sions affording a more limited construction, the courts is in favor of a broad rather and pointed only to a particular surplus bethan a restricted construction. It prevents yond the properties specifically mentioned, intestacy, which it is reasonable to suppose it was nevertheless held to pass the residtestators do not contemplate, and, if the uum of his property at the time of his demind is left in doubt upon the whole will as cease as well that which he held at the date to the actual testamentary intention, a broad of his will as that afterwards acquired. rather than a strict construction seems more Lord Elden here said that it was the genlikely to meet the testamentary purpose, beeral rule in regard to residuary bequests to cause such a clause is usually inserted to avoid partial intestacy, and that it required provide for contingencies or lapses, and to very special words to confine a residuary cover whatever is left, after satisfying spe- bequest to the property belonging to the tescific and special purposes of the testator tator at the date of his will." 2 Redfield manifested in the other clauses of the will." on Wills, p. 116. The words of the residuLamb v. Lamb, 131 N. Y. 234, 30 N. E. 134. ary clause, "not herein before specifically deThis presumption is greatly strengthened by vised," do not overcome the presumed intenthe language of the will and of its provi- tion to include lapsed devises. That phrase sions, taken as a whole. The emphatic lan- must be construed with reference to the guage used evinces a clear intention to cov- time that the will speaks, and, when so coner all of the testator's property. The pre-sidered, it refers to valid devises or those amble reads thus: "As to my worldly estate and all the property, real, personal or mixed, of which I shall die seized and possess ed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to wit:" In 1 Underhill on Wills, § 464, this pertinent statement of the law on the subject is found: "The rule is that the testator's intention is to be ascertained from the whole will. If, therefore, the testator in the introduction expresses an intention of disposing of all of his estate as when he says 'I give and devise all of my worldly goods,' it should be considered. The presumption arises that, having the disposition of his whole estate in view, he did not intend to die intestate as to any part of it. If his subsequent language may be construed in either of two ways, by one of which a complete disposition will be made of his whole estate, and by the other only a partial disposition will be made, resulting in a partial intestacy, the introductory statement pointing to a complete disposition ought to be considered, and that sense adopted which will result in a disposition of the whole estate. Hence it follows that language which in a general or residuary clause may not alone be sufficiently conclusive to dispose of all the property of the testator may have its meaning enlarged to correspond with an intention shown in the introductory clause." Mr. Redfield states the same conclusion as

which finally take effect under the will, but does not exclude from the residuum lapsed devises or those which are void when the will takes effect. "In all these cases of lapsed or void legacies," says the Massachusetts court, "or a legacy that fails for want of using proper language to create the same, or to designate the legatee, all of which are uniformly held to pass to the residuary devisee, the testator had no purpose in his mind at the time of executing his will to pass such an estate to the residuary devisee. 'It is not necessary that the testator's mind should be active in including it.' Goodright v. Downshire, 2 B. & P. 600. The contrary intention of the testator spoken of in the books, as that which will prevent such legacy going to the residuary devisee, is something more than the fact that the testator supposed that he had made a valid legacy to someone of a portion of his estate, but which the court held void and inoperative." Thayer v. Wellington, supra. In the following cases use of the same words, in substance, were held not to take lapsed devises out of the operation of the residuary clause: Roberts v. Cook, 16 Ves. Jr. 451; Brown v. Higgs, 4 Ves. Jr. 709; In re L'Hommedieu, 32 Hun (N. Y.) 10; Tindall's Executors v. Tindall, 24 N. J. Eq. 512; Riker v. Cornwell, 113 N. Y. 123, 20 N. E. 602.

The conclusion is inevitable, if the principles above announced are to be consider

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. 88 1249-1251, 1257; Dec. Dig. you come back, and I will give you the 392.*]