Sullivan v. Straus

Opinion by Mr. Justice Green, The testator did not content himself with a mere omission of his son John as a legatee under his will, but he particularly and especially excluded him, by express words, from any participation in his estate. His words are, “I now come to the most unpleasant part of my work, that is the disinheriting of my youngest son John Russell Sullivan in consequence of his disobeying my wishes. I wish him to have no interest in profit or principal of any part of my estate whatever if he should be employed by my sons my son James who has charge of all my estate will do right by him, he shall have no claim whatever on anything which I leave.” Of course if this clause of the will had followed the residuary clause there would not have been the slightest question that John would have taken nothing under the will. It is only because the residuary clause follows the clause of disinheritance that there is any occasion for an}r question as to the intent of the testator. But it is the intent of the testator which must prevail, and if that be clearly apparent, the order of the testamentary clauses is of little moment. What then was the testator’s intent as to his son John? The language of the will above quoted excludes John from any, even the slightest, participation in the testator’s estate. It was so intended; the testator says it was so intended. He calls it “ the most unpleasant part of my work.” What was it that was so very unpleasant? He explains it himself in immediate sequence, thus, “ that is, the disinheriting of my youngest son John Russell Sullivan in consequence of his disobeying my wishes. ... he shall have no claim whatever on anything which I leave.” After this language it is altogether impossible to hold that the testator intended, or was even willing, that John should take any part of his estate. Of course if after that, he had expressly given a legacy to this son by name, he would take the gift because it was expressed subsequent to the exclusion. But it cannot be done by a mere implication even when the subsequent gift is to a class which would include John. We therefore hold that when the testator said in the very next sentence of the will, “ It must be perfectly well understood that [151] all of my estate belongs to my children and grandchildren ” he did not mean to include John or his children within the designated class. ■ Any other construction of this residuary clause would simply nullify the immediately preceding clause of the will which expressly excluded him. We do not see any occasion for any refinement of reasoning upon the subject. The testator has said in unmistakable language that John is to have no part of his estate, and these words can only be enforced by holding that in the succeeding clause he meant his children other than John. Judgment affirmed.