Stimpson v. Murch

Rugo, J. The testatrix died a childless widow in 1888, leaving as her heirs at law a brother, two sisters and a nephew, Walter Stimpson. Her will, dated in 1886, provided, so far as material, that “ I give and devise also to said Walter Stimpson my homestead estate, ... To have and to hold the same to him during his life or until he shall have married, and whenever lie shall marry, and likewise in case he shall either be married or have issue at my decease, said estate shall vest in him in fee simple, and as his absolute property.” Walter, the nephew, mentioned in the will, in 1873, at the age of eighteen, went to live with the testatrix, and remained a member of her family until her death. She was very fond of him. He was married for the first time in 1890, and died in 1905, never having had issue. By his will his entire estate was given to the petitioner. The question is as to the estate acquired by Walter under the will of his aunt. The cardinal rule to be followed in the interpretation of wills is to ascertain the intent of the testator, and then give it effect, unless prevented by some inexorable rule of law. The language employed by the testatrix Davenport admits of but one reasonable interpretation. It contemplates three different contingencies, which together cover the whole range of possibility as to the marriage of the beloved nephew. He was unmarried at the time the will was executed. She deals first with that situation, and says that he shall have during his celibacy a life estate which shall ripen into an estate in fee whenever he shall marry. Weston v. Foster, 7 Met. 297. The second condition for which she made provision was that of his being married at the time of her death, and she gives to him a fee in that event. The third aspect of his life, which she 'considered, was that of his having married and become a widower before her death, but having issue at that time, and he is given an estate in fee if these are the circumstances. The use of the words “ and likewise ” are criticised by the respondents as tending to create an ambiguity. But they are not susceptible of such construction. The sentence perhaps might have been slightly more grammatical, if the modifying clause creating the estate in fee simple had preceded these words, but even as to this there would probably be differences of literary taste. There is nothing unreasonable in the will as thus interpreted. It was only in the event 383 that Walter should decease without having either wife or child after her death that the testatrix left her estate to be distributed as intestate among.her brother and sisters. Contrary to the ineffectual attempts sometimes made by those executing wills to cut down or take away an estate on marriage, the present testatrix, in pursuance of sound public policy and the dictates of affectionate regard for the happiness of her dearest relative, gave as an added inducement to marriage a larger estate in that event. Exceptions overruled.