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Bosley et al. v. Bosley's Executrix

The counsel for the appellee made the following points.

1. That the residuary clause in the codicil revokes the residuary clause in the will. 4 Black. 381 ; 4 Kent, 535, (note); 3 Greenl. Cruise, 139; Rowley v. Eyton, 2 Mer. 128; Rogers v. Pettis, 1 Addams, (Prerog.) 30.

2. That the decree of the court below was right; because, if no part of the specific property devised by the last clause in the will, which contains also the residuary devise, was not revoked by the last clause in the codicil, a large part of that specific property was subsequently disposed of, by the testator, and other parts of it otherwise specifically devised by the codicil.

3. Because that portion of such property so specifically devised by said last clause in the will, his lands in Baltimore county, was revoked by the testator's agreement of lease, afterwards executed by Mrs. Bosley, by her lease to Armstrong, on the 18th of January, 1845, for the term of ninety-nine years, renewable forever. 7 Bac. Ab. tit. Wills and Testaments, G. 344; 4 Kent, Com. 528 to 530, and cases there cited, 6 ed.; Colegrave v. Manley, 6 Madd. 84; Ward v. Moore, 4 Madd. 368; 5 Pick. 112; 7 Johns. Ch. Rep. 261.

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 es. tate, 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

Bosley et al. v. Bosley's Executrix.

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 bequeathe unto my said wife Elizabeth N. Bosley, and her heirs forever; and I ratify and confirm my said last will in every thing 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 rute he deduces from

Bosley et al. v. Bosley's Executrix.

them is this, " that the same interest which the testator had when he made his will should continue to be che 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. Rep. 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 doesinot 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 purchasemoney 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 payınent 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 con.

Bosley et al. v. Bosley's Executrix.

tract, 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 cer. tain 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 paticular parts of it.

Undoubtedly there are fixed rules of law in relation to the construction of certain words and phrases in a will, which bave been established by a long course of judicial decisions; and which have become landınarks 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

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VOL. XIV.

Bosley et al. v. Bosley's Execatrix.

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

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