Perry, Administrator v. Hunters.

2 R.I. 80

• Court: Supreme Court of Rhode Island
• Decided: March 6, 1852
• Status: Published

Opinion

Greene, C. J.,

delivered the opinion of the Court. In construing a will, we admit the rule that the Court are to put themselves in the situation of the testator with reference to the property and the relative claims of his family, the relations subsisting between him and them and the circumstances which surrounded him.

But this rule is intended to aid in the construction of the will, where the provisions are doubtful or may admit of more than one interpretation, but not to control the plain meaning of the language of the will. Where this language is clear and explicit it must prevail.

We think the testator’s will shows clearly, that he intended this will should pass all his property.

It contains two residuary clauses, the one giving all the rest and residue of the testator’s funds, and the other, giving and devising “ all the residue and remainder of the estate or estates of whatever nature or whenever acquired of which he might die seized or possessed.” When the testator uses such language as this, it clearly shows he means to pass all his property, known and unknown.

Besides, the agreed statement of facts shows the testator had heard, at the time he made his will, that his sister was dangerously ill and that he"r death was not then improbable. This sister informed him, that she had made her will in his favor, and he delayed for sometime the making of his will, in the expectation of hearing of her death.

Under these circumstances it is incredible, that the testator should have used such language, unless he had intended to pass the property which might have been given him by his sister’s will.

There remains to be considered a question of more difficulty, and, that is, under which of these residuary classes the property passed.

The language of the first residuary clause is : “ All the residue of my funds, after providing for the discharge of the annuity and legacies, herein before provided, and the payment of my debts as aforesaid, I give and be qüeath ünto my two sons, Thomas R. Hunter and Charles Hunter,” &c. The debt due from Messrs. Birckhead & Co., was the principal means, the testator left of his own property, to pay the legacies, and from the language of this first residuary clause, giving the residuum of his funds, it is obvious he considered this debt as a part of his funds, and this clause was intended to give all that remained of this debt, after the legacies were paid.

Now, we may reasonably suppose, that if the testator intended this term to embrace a debt due from Messrs* Birckhead & Co., he might well intend by the same term to embrace a debt due from the French Government, and deposits in the Savings Bank in France.

Webster says the term “ funds”, means, among other things, money lent to government, constituting a national debt. This is not a legal term, with a settled meaning, but is a term in common use.

We do not think the term means a chattel or furniture or the like, but money ancl securities, more especially government securities.

We think, therefore, that the sister’s property consisting of French Government stock, and deposits in the Savings Bank in France, passed under the ninth clause*