Hathaway v. . Harris

Smith, C. J. We differ with His Honor in the construction he places upon the limitation over, contingent upon-the -death of Henry with a -lawful child, “ then -to him and his •heirs,” whereby these words are applied to the child, a-nd in this case, designates the daughter, who takes the fee. -In -our opinion, they refer to the devisee, Henry, and enlarge ■his preceding life estate -into a fee, and for the following reasons-: 1. In every other part of .the entire clause, (except the ■concluding words) where the pronouns he -and his are used, the reference is .plainly to the son, Henry, and must be so understood, to give meaning to the sentence, “ If he (Henry) should d-ie with a lawful child, then to him (Henry) and his ‘(Henry’s) heirs forever; but if he (Henry) should die without a lawful child, then to his (Henry’s) widow,” &c., plainly 'indicating the presence of the son, in the testator’s mind, in making these contingent dispositions of the estate. It would be unreasonable to separate this brief paragraph from its •context, and^assign it a reference altogether unlike its associates. 2. In both sections of the clause, the testator speaks of a ■lawful child, avoiding any allusion to its sex, and thus comprehending both a son and a daughter, and yet in the limitation 'Over'“to him and his heirs,” the masculine pronoun is used, which, in strictness, would exclude the daughter, if applied to the more .general preceding word, child. *98 3. Frota tire other clauses of the will, it will be seen that he devises lands to-his other sous unconditionally, and without the limitations which fetter the gift to Henry. 'It may' be inferred, though the fact is not stated in the verdict, that the other sons had issue when the will was made, while* Henry had none,-and therefore the testator intended to-place* him upon the same footing with his brothers, if he had issue-living at his -death, and to-- provide* for the- uncertainty of his dying without.- The will having been executed since the act of 1827, i# must be read-' by force of the enactment, as if the testator had added-to the words immediately preceding, the-limitation* the words “living at the time o-f his death, or born to- him within ten months-thereafter.’* Bat Rev.,-ch. 42, §3.- The declarations" of the testator were entirely incompetent to vary the construction to be given to his will, and.were properly ruled out. Wig. on Wills, Prop. 6; But they become immaterial, as our interpretation of the testator’s? intent, derived from the language he employs, is,-that which» the proposed declarations were intended to disclose. There must, therefore,-be judgment for the defendant. Error.- Reversed.-