Malone v. Dobbins

The opinion of the Court was delivered by Lowrie, J. This will is certainly not very clear; but the reference to John’s' advancement must have a purpose in it, and it must indicate some qualifying intention concerning John’s share. , It is very plain that it does not increase the share granted to him in the general devising clause, and this inclines us to suppose that it [297] is intended to reduce the apparent effect of that clause; and the form of the qualification rather tends to confirm this supposition, for he says that John shall have a proportional share of his estate, if it exceeds seven times $500, which involves the thought that otherwise his advancement was to stand for his share. The intention seems to he that all his children are to share his estate equally, the amount advanced to John being considered as so much on his share. And the very obscurity of this will would incline us to this construction, on the principle that, in doubtful cases, the heir has the advantage, or those claiming equality among children. It is manifest that this will in its principal part pursues some book of forms, and all the difficulty arises in the attempt to frame and fit in the special clause about John’s advancement. It is an ill contrived patch, but we think that we see the defect it was intended to cover. This interpretation excludes John from any share of the estate under the will, because it was not large enough to give the other children shares equal to his advancement; yet he was a party to the partition of the real estate. We do not see that this subsequent fact can be regarded in interpreting the intention of the testator. Judgment affirmed.