Thompson v. Betts

Torrance, C. J. One of the questions reserved relates to the use, or admissibility, as aids in the process of construing the will in question, of certain of the evidential facts agreed upon, and that question will be first considered. *579 Certain of the parties in this case object to the use, or admissibility, for the above purpose, of certain of the facts stated in the record. To which of these facts the objection is taken, the record does not disclose; but in the briefs, and in the oral argument, it is and was taken only to two of them, namely: first, the fact that Emily Leek Betts was a favorite sister of the testator; second, the fact that the widow of the testator, before and at the date of the will and continuously since, was and is the owner in her own right of real estate worth $12,000; and we will therefore assume that these are the only facts to which the objection relates. Speaking generally, in aid of the process of construction and interpretation, resort will be had, first, to the evidence furnished by the will itself, and if that proves to be insufficient, resort may be had to any appropriate extrinsic evidence. If, taking the language of the will alone, when applied to the facts and circumstances to which it relates, the meaning of the testator is clear, extrinsic evidence is unnecessary and therefore inadmissible. “Why seek by parol to explain that which needs no explanation?” Hall v. Rand, 8 Conn. 561, 574; Post v. Jackson, 70 id. 283. On the other hand, if in the process of construction it becomes necessary to resort to evidence of the facts and circumstances under which the will was made, the general rule is that expressed in Wigram’s fifth proposition, namely: “ For the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of, interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will.” Wig. on Wills, Prop. 5. In short, the court may, by evidence of extrinsic facts other than direct evidence of the intention of the testator, put itself as near as maybe “in the condition of the testator in respect to his property, and the sitúa *580 tion of his family,” for the purpose of rightly understanding the meaning of the words of his will. Bond's Appeal, 31 Conn. 183, 190. Whether the facts objected to fall within the class of facts covered by this rule, and whether extrinsic evidence, of the kind furnished by them, is necessary in this case, are questions- about which courts might differ; but they are also questions which, in the view we take of this case, it is unnecessary to decide; for they are not decisive of the main questions presented upon the record. In the discussion of those questions, then, we will assume, without deciding, that the facts objected to are admissible in aid of the process of construction. The language of the second clause of the will, so far as it relates to Mrs. Emily Leek Betts, is this : “ I give and bequeath absolutely as follows : . . . To my sister, Emily Leek, three thousand dollars. . . . To Emily Leek, three thousand dollars.” Here we have, in the forepart of the clause, a legacy of a specified amount to Mrs. Betts, and a little further on in the same clause a legacy of a like amount to the same person, repeated substantially totidem verbis, and nothing more. In such a case, the legatee is prima facie entitled to one legacy only, the presumption being that one of the bequests is but a repetition of the same gift; “ and they will not be construed as cumulative, unless there be something in the language, or in the attending circumstances, proper to come in aid of construction, showing a different intent.” 2Redf. on Wills, p. 178; 1 Sw. Dig., p. 456; Hawk, on Wills, p. 303. This common sense inference or presumption that one of the gifts, in a case like the present, is but a repetition of the other and not a second gift, may now be said to have acquired the force of a rule of construction, and it is applicable in this case ; for there is nothing in the will, nor in the facts agreed upou, including the fact that Mrs. Betts was the favorite sister of the testator, that makes the rule inapplicable. Under this rule, then, Mrs. Betts is only entitled to one legacy of $3,000. The remaining question is whether the legacy to the widow was or was not given in lieu of dower. The claim is that *581 the legacy to the widow is in lieu of dower. It is not so given in express words, but it is claimed that it is so given by clear implication. We think this claim is not well founded. It is true that the intention to give in lieu of dower need not be declared in express words, but may be shown by implication; but the implication must arise from some provisions of the will plainly inconsistent with the assertion of the right- of dower, and the implication must be clear and manifest. This is the rule stated in all our own cases upon this subject, from that of Lord v. Lord, 28 Conn. 827, down to that of Bennett v. Packer, 70 Conn. 357. In the case at bar there is no inconsistency between the widow’s assertion of her right of dower and the provisions of the will, and both may well stand together. Her assertion of her right will in no way defeat, nullify, or interfere with any of the provisions of the will. In addition to this, the presumption is that the legacy to the widow is a matter of bounty and not an equivalent for dower, in the absence of a clear implication to the contrary. Lord v. Lord, 23 Conn. 327, 331. On the whole we are satisfied that the legacy to the widow is not in lieu of dower. The Superior Court is advised (1) that Emily Leek Betts is entitled to only one legacy of f3,000, and (2) that the legacy to the widow is not in lieu of dower. No costs will be taxed in this court. In this opinion the other judges concurred.