Welch v. Huse

By the Court, Crockett, J.: The testator devised to his widow one fourth part of Ms personal property, including horned cattle, horses and sheep, and the will then proceeds as follows: “And I give and devise to her, during the term of her natural life, the right to graze, maintain and keep the cattle and live stock hereby bequeathed to her, upon the said farm or rancho known as the Dos Pueblos.” The only question presented on the present appeal is whether, under this clause of the will, the right of pasturage devised to the widow is to be limited to the identical cattle and live stock bequeathed to her, or whether the will confers upon her a right of pasturage for a number of cattle and live stock equal to the number devised to her, irrespective of the question whether they are the same identical cattle and live stock or others substituted for them. Wills are to be liberally construed, so as to effectuate the intention of the testator; and the right of pasturage devised to the widow being “for the term of her natural life,” the testator must have foreseen that, in the ordinary course of nature, the widow might and probably would survive the identical cattle bequeathed to her. He must also [510] have contemplated that she might find it to her advantage to exchange a portion of the cattle for others, or that some calamity might diminish the herd, which she would desire to replenish with other cattle. We think it was the intention of the testator, in view of these contingencies, to confer upon the widow a right of pasturage for a number of cattle and live stock, equal to those bequeathed to her, regardless of the question whether they were the same or others substituted for them. Judgment reversed and cause remanded, with an order to the Court below to overrule the demurrer to the complaint. Mr. Justice McKinstry did not express-an opinion.