Hennershotz's Estate

[442] The opinion of the court was delivered June 80, by Bell, J. The will in question is evidently the work of an illiterate man; of one measurably unaware of the value of the language he employed. The whole instrument is awkwardly constructed, and particularly in those portions of it which give rise to this controversy. It is not, therefore, at all surprising that some hesitancy should be experienced in pronouncing upon the meaning of its author. Still, by treating it with candor, 'and assigning to prominent sentences, several times used, their natural and ordinary meaning, we may arrive at a conclusion without much hazard of violating the intention of the testator. Beyond question, his leading object was to provide for the distribution of his property among all his children. For this purpose, his first care is to create a fund capable of division, by assigning to his son William the plantation and woodland mentioned in the fourth item of the will, at an ascertained price. This is, first, subjected to the burden of his debts, making provision for his widow, and purchasing for his daughters, Rebecca and Lavina, certain amounts of household furniture; and then “the balance remaining, together with all my other property, shall be equally divided, such as bonds, notes, and the different bequeaths heretofore mentioned, shall be summed together, and equally divided amongst my children.” Once before, in the same clause, is found a direction for an equal distribution among all tJie children, of the estate remaining after discharging debts, and setting aside a certain sum for the benefit of the widow; and in a prior clause this sum is also directed to be similarly divided. Looking alone to these leading features of the testamentary arrangement, one is prepared to say that, in contemplation of the testator, the fund to be raised from the land assigned to William, united with what should remain of his personal assets, after payment of debts, was regarded as representing his whole disposable estate, which, with trifling exceptions, was to be equally distributed among all the children of the donor. Had the word “all” been introduced before “my children,” in the several disposing clauses, there would absolutely be no room for cavil. And yet the language actually employed is as potent to express the intention of general distribution, as though that particular word had been used. “To be divided among my children,” standing alone, is as clearly indicative of a design to give to every member of the class designated, as though every child were named seriatim. It requires no formal chain of reasoning to establish that the same conclusion must be necessarily arrived at under either form of gift, and, consequently, a distribution among all must be decreed here, unless, indeed, there be found something in the general context, or in particular expressions, to countervail the natural import of the sentences referred to. In the absence of such counteracting influence, there [443] would be no better reason for the exclusion of the devisee of thé land as a distributee, than of any other of the children. That he is the recipient of the realty, at a certain value, cannot, of itself, afford a ground for denying him an interest in the fund raiséd; for, regarded simply as a devisee, he must be accepted as a purchaser for value, and so standing in the same relative' position to the subject of the devise as though he were a "mere stranger. For the more easy disposition of his property among the natural objects of his bounty, the testator resolves to dispose of his lands, and turns to his eldest son as the individual he proposes to be his successor as tenant of the fee.' Admit that by this arrangement he had in view an incidental benefit to be derived by the son from the low price named as representing the land, the latter is not the less to be esteemed as taking for value, and, in the construction of the will, entitled to every advantage flowing from his position of purchaser at the sum fixed by one to whom alone belonged the power of naming the price. I admit, that when interpreting an obscure testamentary instrument, the inquirer may look to the circumstances which surrounded the testator at the moment, .to the number and condition of his family, the position in which particular members of it stood towards him, the condition of his estate, and, sometimes, may consider its general value, or of particular portions of it. The latter inquiry is legitimate where there is a declared. intent to equalize all the beneficiaries, as in Marshall’s Appeal, 2 Barr 388; but even then, too much reliance should not be placed on estimated values, and mere conjecture is always dangerous. In the instance before us, we are asked to deduce an argument against the inclusion of William as a participator of the fund, from the asserted fact, that the land devised to him was, at the date of the will, of much greater value per acre than the sum named by the testator, and that, even at this reduced price, he was permitted to enjoy it subject only to the burden of the balance of the debts and the provision for the widow, until Augustus, the youngest son, arrived at full age, a period of eight years and six months, v;hen the yearly payments were to commence, without, however, carrying interest. Of the value of the land, wq have no other proof than from sales made long after the date of the will, and when the worth of the farm had been much enhanced by the construction of the Reading Railroad, and by other large improvements the work of the devisee; data much too uncertain to furnish ground for such deduction. The other asserted advantages derived from postponed payments, might, possibly, be worthy of more regard, had the testator declared an intention to make all his children equal recipients of his bounty. But there is no such avowal to be found in this will. It is not the estate, as it should stand at the death of the testator, but the fund springing from the land, united with the personal assets remaining after payment of debts, that is to be [444] equally divided. Such a distribution is not at all inconsistent with a design to confer on William large advantages as devisee, irrespective of his claims as one of the designated class of legatees. Were there then nothing else in the way, it might be safely asserted the mere inequality of benefit complained of furnishes no sufficient reason for refusing to the oft-repeated sentence, “to be equally divided among my children,” its obvious meaning. But an additional objection is interposed. It is insisted that the words “as follows, to wit,” which immediately succeed the last emplojunent of the sentence just cited, followed by an enumeration of the per-’ sons who are to take, in which William’s name does not occur, demonstrates an intent to exclude him from any participation in the fund. There would seem to be something of soundness in this position were the words relied on used to designate all the persons who are to take under the bequest. But I think it sufficiently plain they were employed, not for that purpose, but as introductory to a direction as to the time and mode of payment to the several legatees particularly named. The testator did not say, “to be divided among the following named children,” or “among my four children, namely,” as he naturally would, had he so intended. But after giving the whole fund equally among his children, he proceeded to direct when and how that portion of it to be paid by the devisee should be disbursed. In order to this, it became necessary to name all the children entitled to receive from William, so as to fix the period and manner of the several payments; but as William was himself to b.e the payer, it was unnecessary to include him in the enumeration. That the phrase on which the appellants base their argument was introduced for the purpose I have intimated, and not to designate the legatees, is also apparent from the use made of similar words in other parts of the will. Thus, “that is to say as follows,” in the first clause, point to the manner in which the thousand pounds is to be secured, and not the mode of its subsequent distribution; and, in the fourth clause, “that is,” immediately following a direction for equal distribution among the children, introduce, not the names of even all the admitted legatees, but simply an order for a partial investment in favor of two of them. These diverse uses of synonymous terms would imply the testator was not fully aware of the value of the language he employed; it, at least, proves he did not always assign to it the meaning insisted on for the appellants; and as, in the present collocation, it admits a different interpretation, it would be, indeed, hazardous to invest it with a signification destructive of the preceding plainly expressed directions for an equal division among the children as a class. In this connection, it may also be remarked, the direction is, the devisee shall pay to each of the enumerated children “ one-half of the part that shall fall to one of my children,” and this is repeated [445] four times, necessarily referring to the preceding words of gift as the only means of ascertaining what proportion of the whole that part is. But were it even conceded the testator intended to enumerate the beneficiaries, when naming his children at the close of the fourth item, it is by no means certain the omission to name William would necessarily exclude him. It is an undoubted rule, that where a testator refers to a class of persons, as the objects of his bounty, but, in an attempted enumeration, omits to name one or more of them, the parties omitted may still take, unless there be something to show the omission was of purpose: Tucker v. Boston, 18 Pick. 162. But in this instance, there was a peculiar reason why William should not be specifically named with the other children, in the fourth item. It is, that that enumeration was but of payees, of whom William was not one. In conclusion, it may be added that the direction to William to pay is not inconsistent with the idea of retention by him of a portion of the fund. In wills, this expression is not uncommon where, beyond all question, the devisee is, himself, to retain. Judgment affirmed.