The fact that in the will under consideration not only real but personal property was devised and bequeathed to the trustee does not prevent the application of the doctrine of equitable conversion, nor does the fact that the time, manner and terms of sale are left to the discretion of the trustee. Stake v. Mobley, supra; Church Ex. Soc. v. Smith, 56 Md. 362; Sloan v. Safe Dep. Co., 73 Md. 239; Reiff v. Strite, 54 Md. 298; Given v. Hilton, 95 U.S. 591; Doughty v. Bull, 2 P. Wms. 320; Phelps v. Pond, 23 N.Y. 69; Philadelphia's Appeal, 112 Pa. 470; Clark v. Denton, 36 N.J. Eq. 419; Wayne v. Fonts, 108 Tenn. 145; Smith's Estate, 4 Phila. 181; Bell v. Bell, 25 S.C. 149; Carr v. Branch, 85 Va. 597; Hancox v. Wall, 28 Hun. 214; Martin v. Spurrier, 23 Ohio Cir. Ct. 110; Ford v. Ford, 70 Wis. 19. If we are right in our contention that by the terms of Mr. Winans' will an equitable conversion of the real property left in trust was effected, then Mrs. Williams had no interest in the estate which can or could be regarded as realty, and, accordingly, when she mortgaged her interest to the appellants, no matter how formal those instruments were by which she attempted to do so, in the mistaken idea that she had an interest in the nature of real property, and those instruments were executed and recorded on that erroneous theory, their recordation did not create a lien or give constructive notice.
This is because it is presumed the testator had only things of that class in mind; but this rule of construction rests on a mere presumption, easily rebutted by any thing that shows the larger subject was in fact the testator's view." ( Given v. Hilton, 95 U.S. 591, 598.) "The rule * * * is that where certain things are enumerated, and such enumeration is followed or coupled with a more general description, such general description is commonly understood to cover only things ejusdem generis with the particular things mentioned.
The legal presumption arising from the making of the will itself is that the testator intended to dispose of all of his property, and not die intestate as to any of it. This presumption must prevail unless overborne by the terms of the will itself. Given v. Hilton, 95 U.S. 591; Snyder v. Baker, 5 Mackey, 455. The first taker is always the favorite object of testator's bounty, and, as such, entitled to every implication.
If the trust for distribution is sustained, the surplus of income accruing before the time of distribution is to be accumulated. On this point see Genery v. Fitzgerald, Jac. 468; Re Dumble, 23 Ch. Div. 360, 365; Hurford v. Haines, 67 Md. 240; McKee's Appeal, 96 Pa. 277, 284; Cochrane v. Schell, 140 N.Y. 516, 537; Abbot v. Essex Co., 18 How. 202, 216; Given v. Hilton, 95 U.S. 591, 594; Kenaday v. Sinnott, 179 U.S. 606, 616; Minot v. Tappan, 127 Mass. 333, 337; Re Travis, 2 Ch. Div. 541, 548. Mr. Clarence H. Olson, with whom Mr. William O. Smith and Mr. A. Lewis, Junior, were on the brief, for Cecil Brown and William O. Smith, Executors, appellees.
Under the statutes in force in the District of Columbia and in the State of New York, and under the general doctrine of comity obtaining among the States, clauses one and twelve of the will are valid. D.C. Code, Chap. XVIII, sub-chap. VI, sec. 669; Chap. 156, Laws 1839, N.Y.; Christian Union v. Yount, 101 U.S. 352; McDonough's Exrs. v. Murdoch, 15 How. 367. The Greenwood Cemetery takes the interest in the real estate as personal property, and takes a vested interest as legatee, under the doctrine of equitable conversion. Cropley v. Cooper, 19 Wall. 167; Peter v. Beverly, 10 Pet. 532; Craig v. Leslie, 3 Wheat. 563; Given v. Hilton, 95 U.S. 591; Holcomb v. Wright, 5 App.D.C. 76. Where the testator directs a fund to be transmitted to another jurisdiction and there applied to a trust, the courts of the testator's domicile will uphold the bequest when the trust is lawful in the jurisdiction where it is to be performed, even though it could not be enforced in the jurisdiction of testator's domicile.
When the words of the will of a testator will fairly carry, as in the present case, the whole estate of which he dies seized and possessed, there is no presumption of an intention to die intestate as to any part of his property. This general rule is laid down in Given v. Hilton, 95 U.S. 594, where it is further stated that "the law prefers a construction which will prevent a partial intestacy to one that will permit it, if such a construction may be reasonably given, ( Vernon v. Vernon, 53 N.Y. 351,) and certainly when, as in this case, the intent to make a complete disposition of all the testator's property is manifest throughout his will, its provisions should be so construed, if they reasonably may be, as to carry into effect his general intent." Without going into any review of the authorities, special reference may be made to the case of Wait v. Belding, 24 Pick. 129, 136, 137, which arose under a will executed in 1797, before the Revised Statutes of Massachusetts went into effect, which devised to the testator's two sons the whole of his "lands and buildings, lying and being in the town of Hatfield."
Clement v. Whittaker, 3 Cir., 1916, 231 F. 940, certiorari denied, 1916, 241 U.S. 679, 36 S.Ct. 727, 60 L.Ed. 1233; De Vaughn v. Greer, 1916, 144 Ga. 743, 87 S.E. 1022; Hartwick v. Heberling, 1936, 364 Ill. 523, 4 N.E.2d 965; Foil v. Newsome, 1905, 138 N.C. 115, 50 S.E. 597, 3 Ann.Cas. 417; cf. Coquillard v. Coquillard, 1916, 62 Ind. App. 489, 113 N.E. 481. Given v. Hilton, 1877, 95 U.S. 591, 24 L.Ed. 458; Hamilton v. Serra, 1887, 6 Mackey 168, 17 D.C. 168. Furthermore, although the testator was a lawyer, appellants devote a very considerable portion of their brief to showing that he "was far from accurate in the use of language, and was inexact and cumbersome in drafting provisions" throughout the will. They do not include the residuary clause among these, but it seems inconsistent to urge that he was meticulously accurate concerning this clause, but glaringly inaccurate concerning so many others.
6 R.C.L. 1088; see, also, 13 C.J. 857. For decisions discussing this question and establishing these principles see the following: Given v. Hilton, 95 U.S. 591, 24 L. Ed. 458; West Virginia Pulp Paper Co. v. Miller (C.C.A.) 176 F. 284; Williams v. Williams (C.C.A.) 61 F.2d 257, certiorari denied 288 U.S. 612, 53 S. Ct. 404, 77 L. Ed. 986; Bartlett v. Gill (D.C.) 221 F. 476, 482, affirmed in (C.C.A.) 224 F. 927; State of West Virginia v. American Baptist Home Mission Society, 96 W. Va. 447, 123 S.E. 440, 37 A.L.R. 200; C.H. Brown Banking Co. v. Stockton, 107 Ky. 492, 54 S.W. 854; Christopher v. Mungen, 61 Fla. 513, 55 So. 273; Collins v. Combs, 160 Ky. 325, 169 S.W. 721; Darrow v. Calkins, 154 N.Y. 503; Weed v. Hoge, 85 Conn. 490, 83 A. 636, Ann. Cas. 1913C, 542; Smith v. Smith, 174 Ill. 52, 50 N.E. 1083, 43 L.R.A. 403; Greenland v. Waddell, 116 N.Y. 234, 22 N.E. 367, 15 Am. St. Rep. 400; Sears v. Scranton Trust Co., 228 Pa. 126, 77 A. 423, 20 Ann. Cas. 1145; Swisher v. Swisher, 157 Iowa 55, 137 N.W. 1076; Fox v. Fox, 250 Ill. 384, 95 N.E. 498; Wheless v. Wheless, 92 Tenn. 293, 21 S.W. 595; Rockland-Rockport Lime Co. v. Leary, 203 N.Y. 469, 97 N.E. 43, L.R
As thus read, it means more than a servant, and relates to one having some proprietary right in the premises. Atles v. United States (C.C.A.) 50 F.2d 808; Denapolis v. United States (C.C.A.) 3 F.2d 722. So we in effect held in United States v. McCrory (C.C.A.) 26 F.2d 189. See, also, Thompson v. Town of Berlin, 87 Minn. 7, 91 N.W. 25; Parsons v. Prudential Real Estate Co., 86 Neb. 271, 125 N.W. 521, 44 L.R.A. (N.S.) 666; Given v. Hilton, 95 U.S. 591, 24 L. Ed. 458; United States v. Florida East Coast R. Co. (C.C.A.) 222 F. 33; In re Robinson's Will, 203 N.Y. at page 386, 96 N.E. 925, 37 L.R.A. (N.S.) 1023; Rex v. Irish, 18 Ont. Law Rep. 351. In United States v. Johnson, 54 F.2d 977, we sustained a "padlock" decree in a suit against a bartender who was in charge of the premises but had no proprietary interest.
ooklyn Rapid Transit Co. (D.C.) 276 F. 152; Mallory v. Maryland Glass Co. (C.C.) 131 F. 111; Metropolitan Trust Co. v. Chicago E.I.R.R. Co. (C.C.A.) 253 F. 868; New York Security Trust Co. v. Louisville, E. St. L. Consolidated R.R. Co. (C.C.) 102 F. 382; Scudder v. Perce, 159 Cal. 429, 114 P. 571; English v. Shelby, 116 Ark. 212, 172 S.W. 817; Jewel Tea Co. v. Watkins, 26 Colo. App. 494, 145 P. 719; Hammerquist v. Swensson, 44 Ill. App. 627; Dawes v. Prentice, 16 Pick. (Mass.) 435; In re Willcox, 165 App. Div. 197, 151 N.Y.S. 141; Newport Water Works v. Taylor, 34 R.I. 478, 83 A. 833; Vaughan v. Porter, 16 Vt. 266; Richmond Ice Co. v. Crystal Ice Co., 99 Va. 239, 37 S.E. 851, 852; Adams v. Urquart (Ark.) 13 S.W. 78; Torrance v. McDougald, 12 Ga. 526; Hawkins v. Great Western Railroad, 17 Mich. 57, 97 Am. Dec. 179; First National Bank of Waterloo v. Story (Sup.) 140 N.Y.S. 31; Jones v. Island Creek Coal Co., 79 W. Va. 532, 91 S.E. 391, 392; In re Paul Delaney Co. (D.C.) 26 F.2d 937; Given v. Hilton, 95 U.S. 591, 24 L. Ed. 458; Lindeke v. Associates Realty Co. (C.C.A.) 146 F. 630; Hoffman v. Eastern Wisconsin Ry. Light Co., 134 Wis. 603, 115 N.W. 383; Spindle v. Shreve, 111 U.S. 542, 4 S. Ct. 522, 28 L. Ed. 512; Sumner v. Blakslee, 59 N.H. 242, 47 Am. Rep. 196; Webb v. Missouri State Life Ins. Co., 134 Mo. App. 576, 115 S.W. 481; Butts v. Northwestern Printing Publishing Co., 43 Minn. 56, 44 N.W. 879; American Brake Shoe Foundry Co. v. New York Railways Co. (D.C.) 277 F. 261; Pullman's Palace Car Co. v. Missouri Pacific R. Co., 115 U.S. 587, 6 S. Ct. 194, 29 L. Ed. 499. The great weight of authority sustains the rule of strict construction in interpreting "after acquired property" clauses in a mortgage.