Sloan v. Hanse

The opinion of the court was delivered by Gibson, C. J. — The intention of the testator, when sufficiently apparent, is undoubtedly the polar star; and, it is sometimes said,, that precedents serve rather to obscure, than to elucidate it. It is to be regretted, that this expression has been used by judges whose learning and ability give it currency. In the development of intention, rules of construction, which owe their existence entirely to precedent, and without which, no two minds, would often, if ever, arrive at the same conclusion, are indispensable to certainty of result; particularly when, as sometimes happens, the judges are called on to suppose an intention, where, in fact, none ever existed. Any settled rule, which leads to a determinate effect, (in comparison with which, the fulfilment of any particular intent, is of secondary value,) is preferable to a process which would destroy every thing like stability of decision, and leave titles depending on intention, to the decision of chance, and the sport of opinion; A well established rule requires, that an implication .by which the laws of descent would be suspended, shall be avoided: in other words,' that the plain and certain disposition of the law, shall not be set aside, except in favour of an equally plain and certain disposition of the testator. To apply this to the will before us, The testator devises to his nephews, in exclusion of his brother of the half blood, all his estate, both real and personal, to. be divided between them, or to their heirs.” , Substitute and for or, and there is no room for dispute. This is resisted, because, as is said, it is. never done but to [33] effectuate the testator’s actual intention. But to take for granted, that the substitution would frustrate the actual intention, is. to occupy the whole, ground in dispute. It is said, however, that as the word estate itself, carries the fee; the word “ heirs,” would be altogether unnecessary,, except to'signify that the estate was limited. alternately to each nephew, or his heirs, with a view to provide for the very contingency that has happened; and, that the inference from this is strengthened by the position of the word in the sentence. We may suspect that such was the object, but we have not sufficient ground to proceed on it as a thing judicially ascertained. The word heirs may undoubtedly be used as. a term of special description, by which a devisee may take even in the life time of his ancestor; but, it is appropriately a word of limitation only, and he who would take by it as a word of purchase, must show clearly and incontestably, that it was used iii that sense. Had the testator here, meant to provide against accident from the death of either of the principal objects of his bounty, it is reasonable to suppose he would, instead of leaving his meaning to conjecture, have said so in terms. He has not done so; and, the inference to be drawn from the use of a copulative, instead of a disjunctive, is too feeble to disinherit the heir. ’ _ Judgment affirmed.