Pastene v. Bonini

Lathrop, J. The question before us is as to the person entitled to take under the designation “ my wife” in the fourth and fifth clauses of the will of the testator. In Hardy v. Smith, 136 Mass. 328, a woman describing herself as “ Mary M. Perkins, wife of Ezra G-. Perkins,” made a will containing this clause: “ I give and bequeath to my husband one half of all my personal property.” ' In fact the testatrix was not the wife of Perkins, but of one Hardy, and the latter contended that he was entitled to take this one half as her husband. But this court held that the question was to be determined by the intention of the testatrix ; that the husband had no vested right to be made a legatee, and could not become such by estoppel, or as a consequence of immoral or reprehensible provisions in the will, but only by the intention of the testatrix. See also In re Petts, 27 Beav. 576 ; Doe v. Rouse, 5 C. B. 422; Powers v. McEachern, 7 S. C. 290. Taking the attendant circumstances in connection with the will, we have no doubt that the testator intended by the words “ my wife ” to designate Mary J. Bonnie, to whom he had been married, and with whom he had lived for thirty-five years, down to the time of his death, and whom he had held out to the world as his wife, and not Rosa, his lawful wife, whom he had deserted in Italy forty years before he died. In the third clause of the will, he speaks of his step-daughter, and it is found that she was the daughter of Mary by a former husband. In the fourth clause he gives to his wife, among other things, “ provisions and consumable stores.” These must have been intended for the woman who lived with him, and the words “ my wife ” in this clause cannot be intended to refer to two different persons, and the intent therefore is clear to give to Mary everything mentioned in that clause. In the fifth clause he gives the residue of his estate to a trustee, to pay the net income to “ my wife ” during her natural life, and on her death to pay the principal to the survivor of two persons named, who are described as “my [88] only children by my first wife.” The persons named were the children of the testator and of Rosa. If he had intended to refer to Rosa by the words “ my wife,” he would have described these persons as her children, and not as the children of “ my first wife.” The only words which throw any doubts upon the intention of the testator are the following in the fifth clause: “ Said provisions in favor of my wife are made to her in lieu of her legal rights.” But the testator may have supposed that the woman whom he had married, and who had been held out to the world as his wife, had some legal rights in his property. See Klein v. Hayck, 5 Redf. (N. Y.) 210; Schult v. Moll, 31 N. Y. State Rep. 979. However this may be, we have no doubt that the testator intended by the use of the words “ my wife ” to designate Mary J. Bonnie and not Rosa, the lawful wife. Decree accordingly.