Haskell v. Sargent

Wells, J. The intent of the testatrix, as it is manifested to our minds from the frame and phraseology of the will, was to deal with the two children of James Graham collectively, as representing her nephew in equal degree of kindred with her niece, Mrs. Haskell. To her niece she devises the front house by the first article; to the children of her deceased nephew she makes one joint devise of the other house, by the second article. By the third article she imposes the burden of any deficiency of her estate to pay debts and legacies upon the three individuals, naming them, but, in directing the mode of apportionment, she [343] makes but one division, to wit, between the two estates which were respectively the subject of the devise in the first and in the second article. . A division “ in proportion to the value of each of said houses and said lands,” as assessed for taxation, is a division between two parties only. Coining then to the seventeenth article, upon which the question in this case arises, we find a devise to the same parties, of land adjacent to that previously given them, and designating the recipients, not by their names as individuals, but by their character as objects of previous gifts. In that character they constitute two parties, and not three. The reference to the first and second articles of the will, we think, must be taken to signify some other purpose than merely to point out the individuals to be benefited. It indicates that this gift is something additional to the former one; and that the testatrix had in mind the relations and order of disposition which had before been set forth. The “ legatees heretofore named in the first and second articles of this will ” are the two objects of her bounty as therein respectively defined; to wit, her niece, and the representatives of her nephew. The use of the word “ between,” strictly implying but two parties to the division, is a slight circumstance favoring the construction to which we incline, although not of much weight in itself, independently of the other considerations mentioned. Upon the whole will we are of opinion that the true construction of the devise in article 17, is that the division intended “ between said legatees,” was an equal division between the legatee named in the first article and those named in the second article, one half to each ; and that consequently the petitioner would be entitled to one half of the estate. Upon this construction of the will, the question of the admissibility of the evidence offered becomes immaterial. Exceptions sustained.