James Bosley, in his will, after sundry specific devises and
bequests, devised and bequeathed all his lands and other real
estate in Baltimore, Cecil, and Alleghany Counties, in Maryland,
and also in Florida, and his house and lot in Santa Croix, and all
the real estate he might have elsewhere, to his wife Elizabeth, her
heirs and assigns, in trust to sell the same and divide the net
proceeds thereof, with all the residue of his estate, equally
between herself and the children of his brother.
After making his will, he sold all of the lands, particularly
mentioned in the residuary clause of the will above stated, except
some lands lying in Baltimore County. At the time of making the
codicil hereafter mentioned, he held some of the proceeds of these
sales in bonds and other securities, and with the residue had
purchased other property.
He afterwards made a codicil by which be devised his summer
residence in Baltimore County to his wife, and also the securities
he held for the lands sold in Cecil County, and directed all the
property he had acquired after the date of his will to be sold and
the proceeds to be equally divided between his wife and her sister
Margaret. Then followed a residuary clause in the following
words:
Page 55 U. S. 391
"Lastly, my pew in St. Paul's Church and all my other property,
real or personal, and all money in bank belonging to me at the time
of my decease I give, devise and bequeath unto my said wife
Elizabeth and her heirs forever, and I ratify and confirm my said
last will in everything except where the same is hereby revoked and
altered as aforesaid."
The residuary clause in this codicil is inconsistent with that
in the will, and consequently revokes it. But the devise of the
property specifically mentioned in the will is not revoked by the
clause in the codicil.
After the execution of the codicil, the testator agreed to lease
some land for the term of ninety-nine years, renewable forever, a
ground rent being reserved upon the same. The lessee was to pay
cash for a part, and the residue of the purchase money was to
remain on interest, as ground rent, which the lessee could
extinguish at any time by the payment of the principal sum.
This property was a part of that which was specifically
mentioned in the will, and not revoked by the clause in the
codicil.
But the conduct of the testator in making this agreement so
altered the condition of the property that it amounted to a
revocation of the devise, and manifests an intention on his part,
when taken in connection with other circumstances of the case, to
give it to his wife under the residuary clause in the codicil.
The bill was filed by the plaintiffs in error, who were the
children of Dr. John Bosley, mentioned in the will of James
Bosley.
That part of the will which gave occasion to the controversy is
stated in the opinion, as are also the material facts in the
case.
The circuit court decided that the residuary devise in the will
was revoked by the residuary clause in the codicil; that the devise
of the property, specifically mentioned in the will, was not
revoked by the clause in the codicil, and ordered an account to be
taken of such part as remained subject to the trust, one-half of
the proceeds whereof to be paid over to the complainants, and that
the testator's agreement, made after the date of the will and the
codicil, to lease a part of that real estate for a term of
ninety-nine years, the principal sum payable at the option of the
lessee, operated to revoke the devise as to that part.
From this decree, the complainants appealed to this Court.
Page 55 U. S. 394
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
The dispute in this case arises out of the will and codicil of
James Bosley, late of the City of Baltimore. The will was executed
in 1828, and the codicil in 1839. He died in December, 1843.
In his will, after sundry specific devises and bequests, he
devised and bequeathed all his lands and other real estate in
Baltimore, Cecil, and Alleghany Counties, in Maryland, and also in
Florida, and his house and lot in Santa Croix, and all the real
estate he might have elsewhere, to his wife Elizabeth N. Bosley,
her heirs and assigns, in trust to sell the same to the best
advantage, and directed the net proceeds, together with all the
residue of his estate, real, personal, and mixed, not therein
before devised, to be equally divided -- one-half to his wife and
the other to the children of his brother, Dr. John Bosley. After
making his will and previous to the codicil, he sold all of the
lands particularly mentioned in the residuary clause of the will
above stated except some lands lying in Baltimore County, and
except also his Florida land and part of that in Alleghany County,
of which it seems he had been unable to obtain possession. And at
the time of making the codicil, he held some of the proceeds of
these sales in bonds and other securities, and with the residue had
purchased other property.
By the codicil, he devised his summer residence, situated in
Page 55 U. S. 395
Baltimore County, to his wife, and also the securities he held
for the lands sold in Cecil County, and directed all the property
he had acquired after the date of his will to be sold, and the
proceeds to be equally divided between his wife and her sister,
Margaret E. Noel. Then follows a residuary clause in the following
words:
"Lastly, my pew in St. Paul's Church, and all my other property,
real or personal, and all money in bank belonging to me at the time
of my decease, I give, devise and bequeath unto my said wife
Elizabeth N. Bosley, and her heirs forever, and I ratify and
confirm my said last will in everything except where the same is
hereby revoked and altered as aforesaid."
Upon this will and codicil, the appellants, who are the children
of Dr. John Bosley, claim the one-half of this personal property
left by the testator at his death and also one-half of the lands
not specifically devised, upon the ground that the residuary clause
in the will is not revoked by that in the codicil.
This claim is altogether untenable. The residuary clause in the
codicil is inconsistent with that in the will, and consequently
revokes it.
There is another claim, however, which presents a question of
more difficulty.
It appears that at the time of making his will, the testator
held, in fee simple, fifty acres of land in Baltimore County, and
that in 1842, after the execution of the codicil, he entered into a
contract with a certain Horatio G. Armstrong whereby he covenanted
that, in consideration of the payment of two thousand dollars at
the times specified in the agreement and the annual ground rent of
two hundred and ten dollars, payable semiannually, he would lease
the said land to Armstrong, his executors, administrators, and
assigns, for ninety-nine years, renewable forever, with the right
to the said Armstrong to extinguish the ground rent upon the
payment of three thousand five hundred dollars at any time to the
said James Bosley, his heirs and assigns. The testator died before
the cash payments were made, and the money was afterwards received
by his widow, and the lease executed by her according to the terms
of the covenant.
As this was a part of the land in Baltimore County, and was
therefore specifically devised in the residuary clause of the will,
it was not revoked by the general devise of the residue of his real
and personal property in the codicil. The question, therefore, is
whether the contract with Armstrong was an implied revocation of
the devise in the will.
The adjudged cases upon implied revocations are collected
together in 4 Kent's Com. 528, and the rule he deduces from
Page 55 U. S. 396
them is this,
"that the same interest which the testator had when he made his
will should continue to be the same interest, and remain unaltered
to his death, and that the least alteration in that interest is a
revocation."
A valid agreement or covenant to convey, which equity will
specifically enforce, will operate in equity as a revocation of a
previous devise of the land.
Walton v. Walton, 7 Johns.Ch.
258.
In the case before us, the interest which the testator had in
this land at the time of making his will was converted into money
by his contract with Armstrong. It was a sale and an agreement to
convey his whole interest in the land. It is therefore unlike the
case of a lease for years, or of ninety-nine years renewable
forever, in which the lessor retains the reversion -- and does not
bind himself to convey it on any terms to the lessee.
The form of the contract adopted in this instance, between the
testator and Armstrong, is in familiar use in the sale of lots in
the City of Baltimore and the adjacent country. It has nearly if
not altogether superseded the old forms of contract where the
vendor conveyed the lands and took a mortgage to secure the payment
of the purchase money -- or gave his bond for the conveyance and
retained the legal title in himself until the purchase money was
paid. And it has taken the place of these forms of contract,
because it is far more convenient both to the seller and the
purchaser. For it enables the vendee to postpone the payment of a
large portion of the purchase money until he finds it entirely
convenient to pay it, and at the same time it is more advantageous
to the vendor, as it gives him a better security for the punctual
payment of the interest, and while an extended credit is given to
the vendee, it is to the vendor a sale for cash. For if his ground
rent is well secured, he can at any time sell it in the market, for
the balance of the purchase money left in the hands of the vendee.
It will be observed that the rent reserved is precisely the
interest on the amount of the purchase money remaining unpaid. And
when it must be admitted that a sale in which a bond of conveyance
is given, and the title retained by the vendor, to secure the
payment of the purchase money, is in equity a revocation, there
would seem to be no good reason for holding otherwise in the case
before us, where the vendor is equally bound to convey when the
whole purchase money is paid. A distinction between the cases would
rest on a difference in form rather than of substance and
principle. It would moreover make the revocation depend upon the
will of a stranger, and not upon that of the testator. For if
Armstrong had paid to him in his lifetime, the whole amount of the
purchase money, as he had a right to do under the
Page 55 U. S. 397
contract, it is very clear that the devise would then have been
revoked. And if the purchaser's omission to pay prevents the
contract from being a revocation, the validity of the devise is
made to depend, not upon the will or the act of a testator, but
that of a stranger, over which the testator has no control. We
think a distinction leading to that result cannot be maintained,
and that the devise in question was revoked by the contract with
Armstrong.
The counsel for the appellants, however, contends, that if the
will is revoked, and the land converted into money, yet there was a
legal reversionary interest remaining in him, and that the rent
reserved, being incident to the reversion and pertaining to the
realty, cannot pass under a bequest of money or personal
estate.
But it must be remembered that the residuary clause in the
codicil gives to his wife all his real as well as personal
property, not otherwise disposed of, and therefore is broad enough
to embrace the interest in question, although, in contemplation of
law, it belongs to the realty.
We do not mean to say that every residuary clause in a codicil
will pass land specifically devised in a will, where, by some act
of the testator, the devise is impliedly revoked after the codicil
was executed. There are adjudged cases upon certain wills where it
has been held otherwise. But whether the property passes to the
devisee or descends to the heir, as in a case of intestacy, must
depend upon the intention of the testator, to be gathered from the
will and codicil. It is always necessarily a question of intention.
No two wills, probably, were ever written in precisely the same
language throughout, nor any two testators die under the same
circumstances in relation to their estate, family, and friends. And
it would be very unsafe as well as unjust to expound the will of
one man by the construction which a court of justice had given to
that of another merely because similar words were used in
particular parts of it.
Undoubtedly there are fixed rules of law in relation to the
construction of certain words and phrases in a will which have been
established by a long course of judicial decisions, and which have
become landmarks of property, and cannot therefore be disturbed.
But in most of the cases in which they have been applied, it is to
be feared that they have not accomplished, but defeated, the
testator's intentions.
They owe their origin to the principles of the feudal system,
which always favored the heir at law because it was its policy to
perpetuate large estates in the same family. And acting upon this
principle, the English courts of justice have in some instances
placed the narrowest possible construction on the
Page 55 U. S. 398
words of a will. And a testator sometimes being held to die
intestate as to portions of his property and left it to descend to
his heir when a fair and reasonable interpretation, according to
the ordinary acceptation of the words used, plainly showed that the
whole estate was intended to be devised to another.
It has not been the disposition of courts of justice in modern
times to extend the application of these rigid technical rules, but
rather to carry out the intention of the testator when no fixed
rule of legal interpretation stands in the way. And this is and
ought to be more especially the case in this country. For wills
here are most frequently drawn by persons unacquainted with legal
phraseology and ignorant of the meaning which the law attaches to
the words they use. The property devised is perhaps, in the greater
number of cases, the fruits of the testator's own industry. And the
policy and institutions of the country are adverse to the feudal
policy of favoring the heir at the expense of the devisee and of
construing, for that purpose, the words of the will in their most
restricted sense, although that construction obviously defeats the
intention of the testator.
But the question arising upon this will and codicil does not
depend upon any word or phrase to which the law has affixed a
certain and definite meaning. The words used are legally sufficient
to pass the property to his widow, and the only question is was
that his intention as we gather it from the will and codicil,
considered together? We think it was.
Eleven years elapsed between the date of the will and that of
the codicil. The situation of the testator's property had undergone
considerable changes during that time, and his mind also had
materially changed as to the manner of disposing of it. The lands
mentioned in the residuary clause of his will had, with a very
small exception, been sold. And the property he purchased with the
proceeds of these sales or otherwise acquired after the date of the
will was devised by the codicil to his wife and her sister, and
not, as before, divided between his wife and his brother's
children, and the whole of his personal estate is given exclusively
to his wife, instead of the one-half only bequeathed in the will.
The land which has given rise to this controversy was also sold by
the testator in his lifetime, and two thousand dollars of the
purchase money had become personalty and as such unquestionably
passed to the wife by the residuary clause in the codicil. The
testator's remaining interest in this property was also money, and
not land, but by reason of the form in which he contracted to sell
it, this portion of the money belonged to the realty. It is
impossible to suppose, after looking at these bequests to his wife,
that he meant to die intestate of this money and to divide this
small portion
Page 55 U. S. 399
of his estate in two parts, giving her the two thousand dollars
but withholding from her the residue and leaving it to be claimed
by whoever might chance to be his heir at law at the time of his
death. On the contrary, it is manifest from the whole context of
the will and codicil that he did not mean to die intestate of any
portion of his property, and that what did not pass to others by a
specific devise or bequest should go to his wife. The codicil is
evidently drawn by unskillful hands, and therefore, according to
settled principles of law, must receive a fair and liberal
interpretation to accomplish the intent. And as that intent is
apparent in favor of the widow, it ought not to be defeated by a
narrow and technical construction of particular words.
It was suggested in the argument that the appellants might be
entitled to a remainder in fee in the two lots on which, it would
seem from the will and the codicil, that two old servants of the
testator were living. But this point very properly was not pressed.
For the lots mentioned in that clause of the will in which a
remainder in fee is given to the appellants after the death of Mrs.
Bosley are lots on which there were improvements and which yielded
an income. The lots in question were not of that description. They
yielded no income, and consequently are not embraced in that
devise.
Upon the whole, therefore, we think the decree of the circuit
court was right, and must be
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Maryland and was argued by counsel. On consideration whereof it is
now here ordered adjudged, and decreed by this Court that the
decree of the said circuit court in this cause be and the same is
hereby affirmed with costs.
Dissenting, MR. JUSTICE GRIER.