Hellerman's Appeal

Mr. Justice Trunkey delivered the opinion of the court March 21st, 1887. The language of the will must be interpreted according to its proper acceptation, or with as near approach to that acceptation, as the context and state of the circumstances existing at the time of its execution will admit. A mistake in the wilL cannot be corrected, unless it clearly appears by fair inference from the whole. In this court the appellant has not contended that parol evidence is admissible of the actual intention of the testator for the purpose of controlling or influencing the construction of his will. This will contains seven “items,” and only the fifth contains no bequest to the testator’s wife. He first bequeaths to her all his personal estate, except a specified portion. The second and fourth items contain devises of real estate, each “ subject to the payment of the sum of one hundred and twenty-five dollars per annum unto my widow, Catharine, for and during the term ,of her natural life.” In the third item real estate is devised to William Hellerman, “ subject to the payment of the sum of one hundred and twenty-five dollars unto my widow, Catharine, for and during all the term of her natural life.” In the sixth item the testator provides that in case his daughter Caroline should die before his widow, that his widow shall have the rents and profits of certain land “during the term’of her natural life.” And in the seventh item the testator devises his homestead farm, subject to the right of his widow, Catharine, to reside on the same “ during the term of her natural life,” and to receive'one third of the rents and profits “ during her life.” After having made five annual payments of one hundred and twenty-five dollars to the widow, the appellant discovered that the words “per annum” had been omitted in the clause creating the charge on the land devised to him. Being interested, he naturally inferred that the words in said clause, “during all the term of her natural life,” were meaningless, though so often used in their proper sense in other parts of the will where money and rents are directed to be paid to her during said period. That he did not sooner discover the omission is not surprising. It seems plain that he took the land, subject to an annual payment during the life of the widow. The testator used apt words to express his intention, and the several devises, subject to annual payments to the widow, are in similar phrase as respects the duration of the charge. Had the testator intended to charge one devise with a single small [129] payment, he would have simply directed its payment to his widow, and not have repeated that phrase, omitting a word, thereby rendering the phrase senseless. It is a fair inference from the whole will that the words “ per annum” were omitted from said clause by mistake. It is unnecessary to repeat the reference to the authorities, made by the Master and court below, which establish the principle that a word may be supplied when it is a clear inference from the whole will that it Avas omitted by mistake. Decree affirmed, and appeal dismissed at costs of the appellant.