Rea v. Twilley

Robinson, J., delivered the opinion of the Court. On the 24th day of February, 1857, John A. Scott made his last will and testament, and after the execution of the ⁴¹¹ same, purchased a tract of land called “ Darly’s Addition Enlarged,” containing four hundred and fifty acres. The question is, whether this subsequently acquired tract of land is devised in the will, or whether it descends to the heirs-at-law ? Art. 93, see. 309, Code of Pub.

Gen’l Laws. The appellant contends that it is devised under the following residuary clause: “All the balance of my estate undisposed of, and all bonds, notes and accounts due me, I want the same collected and invested in stock of the Farmers and Planters’ Bank of the city of Baltimore, or some other or better stock, and the interest or dividends thereof paid over to my dear wife, Eliza Scott, during her natural life.” The meaning of the words “ all the rest of my estate,” or “ the balance of my estate,” or words of like import, used in the residuary clause of a will, has been repeatedly considered by the Courts, and without reviewing the many decisions in regard thereto, it is sufficient to say they all agree that the question, as to whether they are to be understood as embracing real estate,' or construed as referring to personalty only, is one of intention, to be ascertained from the face of the will. Bullard vs. Goffe, 20 Pick., 252 ; Doe vs. Buckner, 6 D. & E., 210; Doe vs. Hunell, 5 Barn. & Ald., 18; Dunnage vs. While, 1 Jac. & Walk., 584; Monk vs. Mawdsley, 1 Sim., 286; Walters vs. Walters, 3 H. & J., 201 ; McChesney vs. Bruce, 1 Md., 344 ; Cole vs. Ensor, et al., 3 Md., 446 ; Roc vs. Harvey, 5 Burr., 2638; Doe vs. Chapman, 1 Hy. Bl., 223.

Standing alone and uncontrolled by antecedent or subsequent parts of the will, they are unquestionably sufficient to pass real estate, but where it appears from the whole context of the will, and especially when used in a residuary clause, bequeathing personal property exclusively, that the testator did not intend to embrace real estate, the intention must prevail, and the words will be construed as including personal property only. The heir-at-law is not to be disinherited except by express terms, or by necessary implication, ⁴¹² and the land not being specifically devised in such cases, his title must prevail, unless an intent to the contrary is satisfactorily established. The question then, in this case resolves itself into this, does it appear from the face of this will, that the testator intended to devise in the residuary clause, the tract of land in question ? And first, let us consider the question, supposing the tract of land to have belonged to the testator at the time of the execution of the will.

In the first clause, he bequeaths to his wife his negro, slaves. In the second, his household and kitchen furniture, stock and other movable property on the premises. In the third and fourth, he devises specifically