
    WILLS.
    [Lake (7th) Circuit Court,
    January Term, 1903.]
    Burrows, Laubie and Cook, JJ.
    A. K. Carrel et al. v. Perry Carrel, Jr., et al.
    “ Clearly and Manifestly ” as Used in Sec. 5969 Rev. Stat.
    The words “ clearly and manifestly ” as used in Sec. 5969 Rev. Stat. should receive but little consideration in construing wills; and where it reasonably appears from the will that the testator intended to devise after-acquired lands, the intention should be given effect notwithstanding these intensives.
    Heard on Appeal.
    A. G. Reynolds, for plaintiffs.
    G. W. Paul, E. F. Blakley and M. A. Tuttle, for defenuams.
   COOK, J.

This action comes into this court by appeal and is prosecuted by the plaintiffs against the defendants to quiet the title to certain real estate, situate in the village of Willoughby, this county.

Reese Y. Carrel, the father of plaintiffs and the grandfather of defendants, made his will on October 25, 1876, and died March 17, 1888. His will was duly admitted to probate.

By the first item of the will, he directed that all his debts and funeral expenses be first'paid out of his personal property.

By the second item he gave, bequeathed and devised all the balance of his personal property, after payment ot his debts, funeral expenses and costs of administration, as provided in first item, and all his right, title and interest in his mill property in Kirkland, and all his right, title and interest in the store property in Willoughby to his children, absolutely.

By the third item of his will he gave and devised all his lands, tenements and real estate, wherever the same might be located or found, excepting and reserving therefrom his interest in the mill property and store property, as provided in the second item of his will, to his children for life with remainder to their children, and no change was to be made in the entailed estate for five years, during which time the children were to occupy the same. At the time of the making of the will the testator had owned for a number of years, an undivided one-half interest in a lot of ground in the village of Willoughby, upon which was a frame store building in which he conducted a store and which, from the time of purchase, was always known and designated by him as his store property and was so designated generally by the people in the village.

Three months after making the will he bought a strip of land of the same depth as original lot immediately south of the lot upon which the store building stood; and a month later he bought another small strip of same depth, south of the last purchase; and in eleven months from the last purchase he purchased from his cotenant the undivided one-half of the premises upon which the store building stood. Soon alter the last purchase, the testator tore down the frame store building and erected upon the three parcels a brick block; part of which block was used for his own store business and the balance of it he leased to different tenants. After the erection of the block the testator continued to designate the premises as his store property and did so up to his death, and it was also so designated by the villagers as before the improvement. The testator sold his interest in the mill property, but whether before or after the building of the brick block upon the Willoughby land does not appear.

Under this will the plaintiffs claim that they are the absolute owners .of all the premises in the village of Willoughby known as the store property, while the defendants claim that the plaintiffs are only the absolute owners of the undivided one-half of the lot owned by the testator at the time of making the will and that they have but a life estate in the premises acquired after the making of the will.

Section 5969 Rev. Stat. provides as follows:

“ Any estate, right, or interest, in lands or personal estate or other property acquired by the testator after the making of his will shall pass thereby, in like manner as if held or possessed at the time of making the will if such shall clearly and manifestly appear by the will to have been the intention of the testator.”

It must be conceded that if the testator had owned all the property in Willoughby at the time of making the will, that the term “ store property ” would have been sufficient to pass title to the entire premises. He always designated it as his store property. It was so known generally in the village. There was built upon it in a compact form, a brick block which was used for store purposes; and under such circum^ stances the term “ store property ” would be considered in the construction of his will, in the same manner as the use of the term, my “ dwelling house,” “homestead premises,” “ country residence,” “ business block,’’ etc. Page Wills (1901), Sec. 488; Webb v. Carney, (N. J. Ch.) 32 Atl. Rep. 705.

But it is said it does not clearly and manifestly appear from the will that it was his intention to devise the after-acquired parcels that went to make up the store property at the time of his death.

The words “ clearly and manifestly ” must be interpreted with reference to the general rules in regard to the construction of wills, and when so considered these intensives add but little to the force and effect of the section, and make it but little, if any, stronger than it would be if they had not been used.

In Brimmer v. Sohier, 55 Mass. (1 Cush.) 118, 132, it is said;

“ It is not supposed that the intensives ‘ clearly and manifestly,’ as used in this section, can have any well defined or precise effect in the construction of wills. They are too vague and indeterminate to form a rule of much practical use. The statute requires, undoubtedly, that the intention of the testator should be fairly inferable from the will, but it does not require an express declaration. The intention is a matter of deduction or inference from given premises.”

It is held in that case:

“ Under Revised Statutes, 62, Sec. 3, which provide for the passing, by will, of after-purchased real estate, ‘ if such shall clearly and manifestly appear by the will to have been the intention of the testator,’ it is not necessary that the intention should be manifested by an express declaration; but it is sufficient if it can be inferred from the several provisions of the will; and the true question seems to be, whether the testator intended to die testate as to all the property which he might leave, or whether he was content to die intestate as to a part, and to leave it to be distributed according to law.”

In Winchester v. Forster, 57 Mass. (3 Cush.) 366, after referring to Brimmer v. Sohier, supra, it is held:

“It is a sufficient manifestation of the intention of the testator that real estate acquired by him after the making of his will shall pass thereby, pursuant to Rev. Stat., c. 62, Sec. 3, where it appears by the whole scheme and tenor of the will, that he intended to make a full and entire disposition of his whole property, real and personal.”

In that case it is said by Shaw, C. J., p. 370, who delivered the opinion:

“ The words of the statute are, ‘ if it shall clearly and manifestly appear,’ etc.; as was said in the case of Brimmer v. Sohier, 1 Cush. 132, ‘ It is not supposed that these intensives can have any well defined or precise effect in the construction of wills ; they are too vague and indeterminate to form a rule of much practical use.’ We are to inquire, then, what is the true construction of this section ; and if the object of the statute was to remove a technical difficulty and to give effect to the intention of the testator, all that can be required is, that, taking the whole will and considering it with reference to the established rules of exposition, such an intent is shown; if so, the intent is manifest and clear.”

In James v. Pruden, 14 Ohio St. 251, it is held:

“ Lands acquired after the making of a will disposing of all the testator’s property -yT^d at his death for specified purposes, will pass under its provisions.'

Ranney, J., in the -^pinion says, p. 253 :

“ By Sec. 54 of the ‘ act relating to wills ’ (2 S. & C. 1626), it is expressly declared that after-acquired property shall pass, ‘ if such shall clearly and manifestly appear by the will to have been the intention of the testator.’ For the reasons given in Smith v. Jones, 4 Ohio 115,121, a will should probably be construed with somewhat more liberality here, upon a question of this character, than has been customary in the English courts. It very seldom happens, that a man who goes to the trouble of making a will, intends to die intestate as to any of the property that he may own at the time of his death. And when it clearly appears that the testator intends all the property he owns at his death to be used and applied for specified purposes and the changes between the will and his death have simply consisted in converting it from one description of property into another, there can be no danger of interfering with his intentions, by holding it all subservient to the accomplishment of such purposes. Indeed, every line of this will looks to his death, and the situation of his property at that time, as the starting point in his dispositions. It is then that his debts are to be paid, and it is then that his wife is to take, either for life or otherwise, all the residue of his ‘ personal and real estate and property,’ of every description ; or, if she is not then living, that it is all to go to his heirs as though the ‘ will had not been made.’ ”

The intention of the testator, therefore, is the thing to be ascertained. Dofes it fairly show that he intended to devise this after-acquired ntsl estate to his children under the second clause of the will.

The whole tenor of the will shows that the testator had reference to his death, and that that was the time when the will was to speak, and the whole scheme of disposition is that all his property owned by him At his death was to pass under the will — “ It is my will that my debts, funeral expenses and cost of administration be paid out of my personal property. All the residue of my personal property of whatever kind character or description, together with all my right, title and interest in the mill property in Kirtland, and all my right, title and interest in the store property in the village of Willoughby, I give, demise and bequeath to my children (naming them) share and share alike, and all my lands, tenements and real estate, wherever the same may be located or found, excepting and reserving therefrom my interest in the mill property and store property, I give and demise to my children for life with remainder to their childrenwith the further proviso that the children were to occupy such lands for the period of five years from his death, during which time no change was to be made in the same. Is it not evident that the intention of the testator was that the children were to have the mill property, and store property absolutely ? These properties were for business purposes; they, could be used or sold as to them might seem best; leaving them untrammeled in the disposition of the same which is ordinarily the most advantageous manner of holding business property. The farms might be entailed without injury and would be safe to his grandchildren, but the business property was not to be tied up with any conditions whatever.

The testator, after making the will, sold his interest in the mill property, which went to his children in fee. In the purchase of the small parcel of land immediately adjoining his store property and the building of the block, the testator must of necessity have used a portion of his personal estate, which also went to the children under the will, or the proceeds of the mill property. As said in James v. Pruden, supra :

“When it clearly appears that the testator intends all the property he owns at his death to be used and applied for specified purposes, and the changes between the will and his death have simply consisted in converting it from one description of property into another, there can ,e no danger of interfering with his intentions, by holding it all subservient to the accomplishment of such purposes.”

It should be observed that the claim of defendant is not that the testator died intestate of the after-acquired property, but that the children own the remainder in fee by virtue of item three of the will. It is true that it has been frequently held that a residuary clause disposing of all the residue of the estate makes a strong presumption that the testator intended to devise after-acquired real estate, and with other provisions of a very slight character tending to show such intentions, and indeed, in some cases, without any other provision, would make the statute, as to after-acquired property, effective. But what is there in this case to make the third item in this regard more effective than the second ? None whatever. Indeed, whatever intention is shown is that if the after-acquired property passes at all by the will it must be under the second item; and if it does not pass by the second item, then the testator died intestate as to it, and in that event the plaintiffs are the owners of the entire estate <in the store property by descent. The cross-petition of defendants is dismissed and plaintiff’s title quieted.

Decree accordingly.  