Ellis v. Rebecca Fairbanks

Field, J. The construction we put upon the will of Mary Fairbanks is, that it was the intention of the testatrix to give to John Baker, 2d, in trust for Joshua Fairbanks and his heirs, all of her estate, real or personal, which remained after the bequests and devises contained in the preceding clauses of the will had been satisfied. The words “ the remaining two fifths of my estate ” must be construed to mean the remainder of my estate, being two fifths, &c. In accordance with a familiar maxim, the incorrect computation may be rejected, and enough then remains to render certain the devise and bequest in trust for Joshua Fairbanks and his heirs. The judgment of the Superior Court was therefore correct in each case, and the entry in each case must be, Judgment affirmed.