Thomson's Appeal

Chief Justice Sharswood delivered the opinion of the court, March 3d 1879. The question presented upon this appeal depends upon the construction of the will of the late J. Edgar Thomson. It was written by himself without the benefit of legal counsel. It must have such a reasonable construction as to effectuate his whole intention — if that can be done consistently with the rules and policy of the law.’ When near his death, Mr. Thomson added two codicils to his will, which throw strong light upon his meaning. It is conceded that [46] the word “proceeds” is a word of equivocal import. Its construction depends very much upon the context and the subject-matter to which it is applied. If a testator should direct his property to be sold, and the proceeds to be disposed of or distributed in a certain manner, no one could doubt that the whole corpus or principal was intended. But should he order it to be rented or invested, then proceeds would necessarily be limited to the net income, especially if the interest given was for life only. Here, the first provision made by the testator, was a gift and bequest of all his estate, real and personal, to trustees, “the income from which shall be devoted to the purposes ” thereinafter mentioned, with power “to sell any of his property and re-invest the proceeds whenever in the judgment of the trustees the interest of the trust will be promoted.” When, therefore, immediately there follows, the direction that so much of the proceeds of the said property shall be paid to Mrs. Thomson as she may deem “ necessary for the maintenance of herself and his niece, they living in such style as she may think best to promote their happiness and comfort during her lifetime,” it is impossible to refer the word “proceeds” to anything but the income which he had just before devoted to the purposes of his will. After some annuities, he then declares that the trustees shall appropriate the remainder of the net income of his estate, after the payments specified, to a charitable purpose. Mrs. Thomson was to have whatever part of the income she might deem necessary. It was to be ¿ntirely in her discretion to say how much. If any remained, after providing for his special annuities and legacies, it was to go to the ultimate charitable purpose. If his niece should survive his wife, however, there was to be paid to her during life, an annuity of two thousand dollars. This was his plan of disposition of his estate when he made his will. As he drew near his last end, he became anxious lest he had not made a sufficient provision for his niece. Accordingly, in his first codicil he desires her to be treated and regarded as if she were really his child, “ receiving during her lifetime such income from my estate, as if she were really my child.” Without pausing to inquire what her interest may be under this and the second codicil, which directs that she shall take “out of the income” of his estate all'that “she requires to render her more than comfortable in her housekeeping during her lifetime,” it is enough to say that both these codicils are a strong confirmation of the construction placed upon the will by the court below. It is very clear that the testator considered himself throughout the will and codicils, as dealing only with the income of his estate, the corpus or principal being vested in the trustees for the ultimate purpose, the charity which he had, no doubt, near his heart. Decree affirmed and appeal dismissed at the costs of the appellant.