Also known as: residuary devises · residuary gift of realty
Written by attorneys — see sources below.
A testamentary disposition of property in the testator's net probate estate that remains after all specific, general, and demonstrative devises have been satisfied.
Raymond Ramos's will specifically devised his cargo vessel to his first officer and left the residue of the estate to a maritime charity. The vessel was destroyed before Ramos died. The charity receives the insurance proceeds because the failed specific devise becomes part of the residuary estate under the will's final clause.
Rhea Reynolds conveyed woodland to her niece using language that created a fee tail substitute. The niece died without issue. Reynolds's will contained a residuary clause leaving the rest of her property to a conservation group. The group receives the woodland because the failed future interest passed through the residuary devise.
Sarah Converse died seised of a parcel of land in Woburn on July 19, 1849. By her will she specifically devised the land to the Independent Baptist Church of Woburn to be holden and enjoyed by them so long as they shall maintain and promulgate their present religious belief and faith and shall continue a Church, and if the said Church shall be dissolved, or if its religious sentiments shall be changed or abandoned, then the real estate shall go to her legatees hereinafter named, to be divided in equal portions between them. The will provided that if her husband Jesse Converse survived her, the devise to the church would not take effect until after his decease, during which time he could enjoy and use the real estate and take the rents and profits to his own use. Following the specific devise, the will contained ten money legacies in varying amounts to different named persons. It then included a residuary clause giving the rest and residue of her estate to her legatees above named, saving and except therefrom the Independent Baptist Church, with the devise to take effect from and after the decease of her husband, who was to have the use of the rest and residue during his life. Jesse Converse, the husband of the testatrix, died in 1864. The Independent Baptist Church of Woburn ceased to continue a church on October 19, 1939. A suit in equity was subsequently brought in the Supreme Judicial Court of Massachusetts to determine the ownership of the land and the persons entitled to share in the proceeds from its sale by a receiver. The single justice entered an interlocutory decree on December 16, 1947, after which the matter came before the full court.
View caseThe property subject to the failed specific devise becomes part of the residuary estate and passes to the residuary beneficiary. Modern statutes direct that any nonresiduary devise that fails for any reason falls into the residue unless the will provides otherwise.
Supporting sources
Residuary devises abate first when estate assets are insufficient. Specific devises abate last. This order protects specific gifts to the extent possible before reducing the residue.
A residuary clause captures all property not otherwise disposed of at death, including after-acquired assets not covered by specific language. Courts construe the clause broadly to avoid partial intestacy.
Supporting sources
An express clause directing failed nonresiduary gifts into the residue functions as an alternative devise. It displaces antilapse and routes the property to the residuary beneficiary.
Supporting sources
…if it shall not pass to the issue of the beneficiary under the provisions provided for by law, shall be included in the residuary devise or bequest if any contained in the will.” (Emphasis supplied). The Majority also relies on Bryen’s Estate , 328 Pa. 122, but in that case the testator failed to sign the prepared will at…