Also known as: residuary devise · residuary devisor · residuary gift · residue clause
Written by attorneys — see sources below.
A testamentary disposition of property of the testator's net probate estate not disposed of by a specific, general, or demonstrative devise. The residuary devise is usually the last dispositive provision of the will and often takes the form of devising all of the rest, residue, and remainder of the estate. A residuary devise can divide the residuary estate among more than one person on a fractional or percentage basis.
Rosa Ruiz executed a will leaving her partnership interest in Field Partners and receivables from its client trust account to her niece Hailey. After the will's execution Rosa withdrew from the firm under a buyout and acquired a new equity interest and arbitration receivables at another firm. At death the original assets no longer existed in the probate estate. The after-acquired interests therefore passed under the residuary clause to Rosa's brother.
Renata Russo signed a will containing several specific devises that referred to herself in the third person and a residuary clause leaving the balance of her estate to her sister. The specific devises were held invalid because they could not be executed as written. The residuary clause remained effective and captured all property that the defective provisions failed to dispose of.
Vasil Pavlinko died on February 8, 1957, and his wife Hellen died on October 15, 1951. In 1949 the couple retained a lawyer to prepare mutual wills leaving their respective properties to each other. By mistake during the execution, Hellen signed the will prepared for Vasil and Vasil signed the will prepared for Hellen, with both instruments signed at the end in the presence of the lawyer and his secretary Dorothy Zinkham. The document offered for probate as Vasil Pavlinko's will began with the declaration "I, Hellen Pavlinko" and provided that the entire residuary estate would go to "my husband, Vasil Pavlinko" absolutely, with contingent gifts to Mike Pavlinko and Maria Gerber if Vasil predeceases the testator and the remainder to Elias Martin, Hellen's brother. The writing signed by Hellen was kept but never offered for probate as her will. Elias Martin, the named residuary legatee and brother of Hellen, presented the document signed by Vasil for probate as Vasil's will. The register of wills refused to probate the writing. After a hearing and argument, the orphans' court of Allegheny County affirmed the register's refusal.
View caseThe failed specific devise passes under the residuary clause unless the will provides an alternative disposition. The residuary devise serves as the catch-all for property not effectively disposed of by other devises.
Supporting sources
No. A residuary clause operates as an alternative devise for a nonresiduary gift only when the will specifically provides that the nonresiduary devise passes under the residue upon lapse or failure. Without that language the gift may pass by antilapse or other rules.
Supporting sources
Residuary devises abate first when assets are insufficient to pay debts and all devises. Specific and demonstrative devises abate last and only pro rata after general devises are reduced.
…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…