Dunlap v. Dunlap

• Decision Date: 15 February 1883
• Parties: HENRY DUNLAP and others, Appellants, v. AGNES T. DUNLAP and another.
• Court: Maine Supreme Court

74 Me. 402

HENRY DUNLAP and others, Appellants, v. AGNES T. DUNLAP and another.

Supreme Judicial Court of Maine.

February 15, 1883

ON REPORT on agreed statement of facts.

An appeal from the decree of the judge of probate in the estate of Abner Chapman.

The appellants, Henry Dunlap, Charles R. Dunlap, Betsey C. Brown and A. D. Manson, petitioned to the judge of probate that the sum of two thousand one hundred dollars and eighty-six cents be distributed among the heirs at law, alleging that it was not specifically bequeathed by the will of said Abner Chapman. This petition was denied and an appeal was taken.

The opinion states the facts.

William L. Putman, for the appellants, cited: Cotton v Smithwick, 66 Me. 360; Lytle v. Beveridge, 58 N.Y. 598; Allen v. White, 97 Mass. 507; Dole v Johnson, 3 Allen 367; Jarman on Wills, *759; Williams Ex. (6 Am. ed.) 1157; Goddard v. Brown, 12 R. I. 31; Turner v. Turner, 14 Chanc. D. 829.

Clarence Hale, for the appellee.

We start with the presumption of law which is defined in a leading case as follows:--" It is a principle sanctioned alike by reason and by authority that when one engaged in an act so solemn and important, as the execution and publication of his last will and testament, he is not presumed as intending with reference to any portion of his estate to die intestate." Any construction of a will which will result in partial intestacy is to be avoided unless the language of the will compels it; for the very fact of making a will is strong evidence of the testator's purpose to dispose of his whole estate. Jarnigan v. Conway, 2 Humph. (Tenn.) 52; Williams v. Williams, 10 Yerger, (Tenn.) 25; Cate v. Cramer, 30 Md. 292; Hanson v. Graham, 6 Vesey 248; Jarman on Wills--Ed. of 1881, p. 851. This presumption of law is borne out and strengthened by the language of the will and the facts of the case at bar.

The scheduling of certain articles which he then has and desires to constitute his bequest to Agnes, does not defeat the general bequest of " the remainder." Although on good terms with his other relatives--all of whom reside at a distance--his affection all goes toward Agnes, and the whole tenor of his words are to give her the bulk of his property. It will be a " little property" but such as it is he manifestly desires Agnes to have the greater part of it. See also, Arnold v. Arnold, 1 Mylne and Keene, 365; Wafford v. Berriage, 1 Eq. cases, ab. 201; Stuart v. Earl of Bute, 3 Vesey 212; 2 Wms. on Executors, 711; Jarman on Wills, p. 762 and 767 and cases cited; Byrnes v. Baer, Al. Law Jour. vol. 24, p. 475, from N. Y. Court of Appeals; Boyes v. Cook, recent English case, Al. Jour. vol. 22, p. 158; Winchester v. Foster, 3 Cush. 366; Brimmer v. Sohier, 1 Cush. 118.

The opinion of the court in Blaisdell v. Hight, 69 Me. 306, is not hostile to our position; for the question there was on a transfer of real estate; and the reasoning of the court is favorable to the construction which we ask in the case at bar.

The whole will is to be construed in arriving at the intention of the testator; but when we come to special words and phrases in the will, such as remainder, property, & c. see: Jarman on Wills, p. 721; Howland v. Howland, 100 Mass. 222; Ely v. Ely, 2 N.J. 43; Myers v. Eddy, 47 Barb. 263; Hayes v. Foster, 14 Pick. 539; Perry v. Bland, 4 Ind. 297; Hurdle v. Oatlaw, 2 Jones, N. C. Eq. 75.

It was clearly the intention of the testator to give his subsequently acquired property as well as that then in his possession to Agnes T. Dunlap.

Here again we start with a familiar presumption of law, namely: That a will " speaks" from the death of the testator. SHAW, C. J., in Kimball v. Ellison, 128 Mass. 41, says: " In general a will looks to the future" --" general words may as well include what the testator expects to acquire as what he then actually holds." See also, Brimmer v. Sohier, supra ; Sweet v. Brown, 12 Met. 175; Martindale v. Warner, 15 Pa. 466; Steleman v. Steleman, 1 Watts (Pa.), 466.

In Dennis v. Dennis, 5 Richardson, S. C. 468, it was held that " all my wagons" and " all my stock" passed after-acquired horses and a wagon.

But the case is much stronger than the presumption of law leaves it. The testator says specifically, " property I shall leave when I shall depart from this earth," and after having opportunity to change the devise he does not make any limitation of it. In Perry v. Hunter, 2 R. I. 80, a testator at the time of his death was possessed of a large property in French government securities and in deposits of the savings bank in France under the will of his sister, then residing in France, of whose death he had not heard, though he knew she had made a will in his favor and had been dangerously ill, and knew also of what her property consisted; the testator gave and bequeathed by the ninth clause of his will, after certain specific provisions, " all the residue" of his funds, and by the tenth clause gave, devised and bequeathed " all the residue and remainder of the estate of whatever nature, and whenever acquired of which I may die possessed." It was held that the property acquired under his sister's will was testate, and passed under the language of the ninth section. The case at bar is much stronger than the one last cited. This reasoning was applied in Card v. Alexander, Connecticut Court of Appeals, 1882. The Reporter, vol. 13, p. 716.

VIRGIN J.

During the entire twenty-seven months of the testator's last sickness, he had his home, paying his board, with his nephew, the husband of the appellee, and required and received from the latter constant care, attention and nursing.

He was about eighty years of age, and had been sick about a year, when he executed the holographic will now before us for construction. At the date of it, the value of the specific property enumerated therein and bequeathed to the two legatees, would not exceed one hundred twenty-five dollars. Of this sum he gave fifty dollars to his nephew, who had furnished him a home, " in grateful remembrance of his kindness; and to his beloved niece Agnes (appellee) who carefully nursed him and did all she could to alleviate his distress and contribute to his comfort," he gave " the remainder of the little property" which he should leave at his decease.

About eleven months after he executed his will, and four months before his own decease, his only brother, resident in Massachusetts,...