Stevens v. Underhill

*70 Blodgett, J. The end to be attained in interpreting a will is to effectuate the testator’s intention as indicated by the weight of competent evidence, which is not required to come from any given source, or to be of any given weight, if it is relevant to the issue. “ The whole will must be taken together, and such construction be put upon it as will carry into effect the purposes the testator had in view” (Claggett v. Hardy, 3 N. H. 147, 151); and this construction does not depend upon the order of sentences, or the part of the instrument where qualifying or restrictive words are found. Drew v. Drew, 28 N. H. 489, 495. So far as the intention of the present testator is concerned, it is plain that in the making of his will he had two leading objects in mind, — first, to reward his wife for her care of him during his sickness ; and, second, to place the children’s portion of his property in the hands of a trustee. With these objects in view, and taking into-account the nature and situation of his property, his relation to those he intended to benefit, and all the material surrounding circumstances ( Goodhue v. Clark, 37 N. H. 525, 533, and authorities cited; Morgan v. Dodge, 44 N. H. 255, 263; Gardner v. Webster, 64 N. H. 520, 521), the testator would naturally make to his wife a special bequest of the excess he intended she should receive above her proportionate share of his estate, and then divide the remainder proportionately between her and the children. Nothing would seem more natural for him to do, and, looking at the whole scheme of the will, we have no reasonable doubt that this was what he intended to do; nor do we find anything in the language of the instrument itself which precludes the fulfilment of this intent, and without violating any cardinal principle of construction. The law prefers equal distribution to unequal (Passmore's Appeal, 23 Pa. St. 381; Horwitz v. Norris, 60 Pa. St. 261); and although a testator may discriminate between the objects of his bounty, and give to one a share of the gross amount of his estate and to another a share of the net amount only after deducting debts and charges, yet the presumption is against such an intention, and a. will will be construed in accordance with such presumption in tlie absence of a clear manifestation of such intention. Willcox v. Beecher, 27 Conn. 134. The only manifestation of such an intention on the part of this testator is found in the second clause of his will, wherein he gives the remainder of his estate, after the payment of his just debts and funeral expenses, to his children.- But we do not regard this as of controlling importance, and especially under the circumstances of the case. The residuary bequest was apparently divided into two sections simply because the testator desired the share of the children to be held in trust; and therefore the significance of the words “after the payment of my just debts,” etc., may well be held to be no greater from their position in the bequest to the children, than it would have been if they had been contained in *71 the bequest to the wife. Drew v. Drew, 28 N. H. 489, 495. The local position of these words alone is not sufficient to show that the testator intended to charge the payment of his large indebtedness ($7,802.79) and funeral expenses upon the children’s share. Wallace v. Wallace, 23 N. H. 149, 156; Drew v. Drew, supra. At most, the testator’s intent is left in doubt, and when this is so the construction is to be as conformable as possible to the general rules of inheritance. France's Appeal, 75 Pa. St. 220, and authorities generally. The general intent of the testator, as gathered from the whole will and other competent evidence, is not to be defeated by language of a doubtful and uncertain meaning contained in a single clause ( Williams v. Bradley, 3 Allen 270, 279, 280; Baxter v. Baxter, 122 Mass. 87, 89), nor by technical rules which relate merely to the construction or position of words. Wallace v. Wallace and Drew v. Drew, supra; Covenhoven v. Shuler, 2 Paige 122, 130, and authorities cited. On the contrary, effect, if possible, will be given to the main and leading purpose of the testator without laying great stress upon particular expressions or detached clauses, say numerous decisions; and especially is this so where, as in this jurisdiction, the question of the testator's intention is determined as a question of fact by the natural weight of competent evidence of all kinds, and not by artificial rules of interpretation invented and applied by an exercise of judicial power. Brown v. Bartlett, 58 N. H. 511; Wilkins v. Ordway, 59 N. H. 378, 382; Kimball v. Lancaster, 60 N. H. 264, 273; Goodale v. Mooney, 60 N. H. 528, 535; Sanborn v. Sanborn, 62 N. H. 631, 640, 643, 644. * The position and wording of the provision under consideration are therefore properly to be regarded only as evidentiary facts upon the question whether the testator intended to cast his debts upon his children; and upon this question no one kind of evidence is conclusive. Giving to these facts the weight to which they are justly entitled, nevertheless, in view of the testator’s purpose, gathered from the will as a whole, in connection with the amount of his property, his large indebtedness, the relation to him of the objects of his bounty, the great inequality which would otherwise result, and the many inherent probabilities of the case, we are constrained to hold that the provision does not have the effect to *72 exempt the' residuary bequest to the wife from the proportionate charges and expenses to which it would otherwise be liable. And this construction not only effectuates the testator’s purpose and relieves against inequality and hardship, but it is also consistent with his language; for “ estate,” when used to signify property which a person leaves to be divided at his death, includes indebtedness as well as assets, and the ordinary meaning of “ residue ” as used in wills is, that portion of an estate which is left after the payment of charges, debts, and particular bequests. Phelps v. Robbins, 40 Conn. 250; Graves v. Howard, 3 Jones Eq. 302. “ The presumption is that a testator uses it in this sense, unless a contrary intent clearly appears ” (Phelps v. Robbins, supra) ; and in the present case it does not so appear. After the payment of the funeral charges, debts, expenses of administration, and the special legacy to the widow, the remainder of the estate is to be equally distributed to the three legatees. Case discharged. Allen, J., did not sit: Doe, C. J., and Stanley, Smith, and Clark, JJ., concurred. Footnotes [*] Kennard v. Kennard, 63 N. H. 303, 310; Wiggin v. Perkins, 64 N. H. 36, 38; Silsby v. Sawyer, 64 N. H. 580, 585; Kimball v. Bible Society, 65 N. H. 139, 150; Edgerly v. Barker, 66 N. H. 434, 447. “Contracts, wills, and statutes are the makers’ intentions, proved by competent evidence. . . . The evidence of intention may include various inherent probabilities and the probative force of many circumstances, as well as the literal sense of the words used. When the meaning is found by giving due weight to everything that legally tends to prove it, it is not a matter of discretion whether it shall be adopted or rejected.” Opinion of the Justices, 66 N. H. 629, 651;—and see 66 N. H. 650, 652-661.