Silsby v. Sawyer

Doe, C. J. Among the legacies are one to the testatrix’s brother Uriah, one to her brother John B. “for the use of his family,” one to the widow of her brother Joseph, one to the widow of her brother Langdon, one “ to the family ” of her deceased brother B. F., and one to Mary J. Miller, who is a daughter of Joseph. The residue is to be sold, and the avails are to be “divided between my brother John B. Sawyer’s family and Mary J. Miller.” The wife of John B. died before the execution of the will. The testatrix’s intention, proved by competent evidence, is her will, and is not defeated by rules of construction. The questions presented by the parties are, whether Mary J. Miller takes half of the residue, and whether John B. takes any part of it as one of his family. On these points the competent evidence leaves the testatrix’s meaning in doubt; but the whole will, taken together, shows a balance of probability in favor of her intention to give one half of the residue to Mary J. Miller, and the other half to the children of John B. Case discharged. Allen, Blodgett, and Carpenter, JJ., concurred; Smith and Bingham, JJ., dissented on the question of the testatrix’s intention to give one half of the residue to Mary J. Miller and the other half to the children of John B. Sawyer, instead of dividing it per capita ; Clark, J., did not sit.