
    Henry A. Church vs. The Warren Manufacturing Company.
    A statute provided, “ every person of the age of twenty one years and of sound mind . . . may . . . devise any lands, tenements, or hereditaments acquired subsequently to the execution of his will, provided his intention to devise the same appears by the express terms of his will.”
    A residuary devise was as follows:
    “All the rest, residue, and remainder of my property, of every kind, nature, and description, and wherever the same may be, I give, devise, and bequeath unto my son.”
    
      Held, that the devise did not carry the testator’s realty acquired subsequent to the execution of the will.
    Assumpsit. Heard under tbe following stipulation signed by tbe attorneys of tbe litigants :
    “ Agreed to try tbe aboye case to tbe court on tbe following stipulation ; tbe question before tbe court being tbe question of wbetber tbe plaintiff bas title in tbe real estate described in tbe declaration.
    “ One Irene Butler, tbe mother of Cyrus Butler, from whom tbe plaintiff claims title, made and executed ber last will and testament, and after giving certain bequests to ber two grand children made a residuary clause as follows:
    “ ‘ All tbe rest, residue, and remainder of my property, of every kind, nature, and description, and wherever tbe same may be, I give, devise, and bequeath unto my son Cyrus Butler of Providence.’
    “ Subsequent to tbe execution of this will said Irene Butler acquired tbe real estate in question, and tbe question before tbe court to be determined is wbetber or not, under said will, said property in question passed to Cyrus Butler.
    “ All other questions to be left open.”
    
      July 5, 1884.
   Caepeyteb, J.

Tbe question to be decided, under tbe stipulation and agreed statement of facts, is wbetber tbe will of tbe late Irene Butler devises real estate which was acquired by ber after tbe execution of tbe will. Tbe clause of tbe will in question is as follows :

“ All tbe rest, residue, and remainder of my property, of every kind, nature, and description, and wherever tbe same may be, I give, devise, and bequeath unto my son Cyrus Butler of Providence.”

Tbe plaintiff admits that under tbe general rule of law, in order to pass real estate by a will, tbe testator must be seized of tbe same at tbe time of executing tbe will, but contends that this will passes estate afterwards acquired by virtue of our statute which provides that “ every person of tbe age of twenty one years and of sound mind . . . may . . . devise any lands, tenements, or her-editaments acquired subsequently to tbe execution of bis will, provided bis intention to devise tbe same appears by tbe express terms of his will.” Pub. Stat. R. I. cap. 182, § 1.

We are referred to decisions in Massachusetts and in New York in support of this view. In Winchester v. Forster, 3 Cush. 366, it was held that where tbe intent to make disposition of bis entire property appears by tbe whole scheme and tenor of tbe will, in that case after acquired real estate will pass. The words of tbe statute in that State were that after acquired estate should pass “ if such shall clearly and manifestly appear by tbe will to have been tbe intention of tbe testator.” In that case it was argued that there must appear an intention specifically to devise such estate as should afterwards be acquired, but tbe court held tbe true construction of that statute to be that tbe general intention to pass tbe whole estate of tbe testator, and not to die intestate as to any part of it, brought tbe case within tbe statute, provided that intention appeared from tbe reading of tbe whole will.

In Lent v. Lent, 24 Hun, 436, substantially tbe same decision was made under a statute which provided that “ every will that shall be made by a testator in express terms, of all bis real estate, or in any other terms denoting bis intent to devise all bis real property, shall be construed to pass all tbe real estate which be was entitled to devise at tbe time of bis death.”

We think tbe proper construction of our statute requires that tbe intention appear in direct and explicit terms on tbe face of tbe will. Tbe intention is to appear in “ express terms,” and not by any implication or inference. Before this statute was enacted it was not competent for tbe testator by any form of words to devise estate such as that now in question. What words would be sufficient to express the intention to act under tbe power given by this statute we do not undertake to inquire; but it seems clear that tbe words of this will do not express such intention. They go no further than tbe words wbicb were formerly used to pass tbe residue of tbe estate of wbicb tbe testator was tben seized, and tbey seem to us to be entirely consistent witb an intention that tbey shall have no further effect.

James M. Ripley, for plaintiff.

James Tillinghast, for defendant.

We decide, therefore, that tbe real estate in question did not pass under the residuary clause of the will.  