Chappel v. Avery

Bristol, J. The plaintiff’s title to the demanded premises depends on the will of Gilbert Chappel. The defendant married the widow of the testator, and by virtue of the will, claims, that in right of his wife, under the will, he is entitled to the possession of the land in question, till the plaintiff arrives at full age. The plaintiff claims, that the estate of his mother, was terminated, upon her intermarriage with the defendant: and the decision must depend on the intention of the testator, as collected from the different provisions of the will. By the first clause in the will, the testator gives his wife the use and improvement of one third part of his home farm ; but limits the estate expressly to continue only during her widowhood. This is inconsistent with the claim set up by the defendant under a subsequent clause, and shews that the husband’s bounty was intended not to extend beyond the widowhood of his wife. His son, the principal object of his bounty, being a minor, he appears to have supposed that he could safely intrust the use of the whole landed estate to his mother, provided she did not marry a second husband, leaving to her discretion the education of her son and the expenditure of the profits of his land. To carry this wish into effect, he provides, that the mother shall have the use and improvement of the whole land till his children should arrive at full age ; and by the next clause provides, after giving the plaintiff the remaining two thirds of his home farm, that his “ son should have the whole of his landed property from and after the marriage or decease of his honour-ed mother.” By the first clause in the will, we have seen, that the devise of one third of the home farm, was given only during widow [34] hood; and the devise of the use and improvement of the whole landed property during the minority of the children, would be inconsistent with the first devise to his wife, if the latter devise was absolute and unconditional. Such a repugnance in two different clauses of a will, placed in immediate connection with each other, is not to be presumed. The different parts of the will are to be constructed with reference to each other, and the intention collected from the whole will. The latter clause, giving the son “ the whole landed property after the death or marriage of his honoured mother,” is perfectly consistent with the first clause giving to the mother the use of one third of the home farm during her widowhood only. By this clause, a remainder in the third given to the wife during widowhood, is given to the son, as well as all the rest of his landed property, after her marriage or death. This is not a disposition entirely repugnant to the devise, during the minority of the children; but a qualification or condition subsequent, providing that the estate, during the minority of the children, should cease upon her marriage or death. The intention collected from the whole will is clear ; conveyed in language not to be misunderstood; and to disobey it, would be to assume the power of making, not of construing wills. Besides, if a subsequent provision in a will varies from a preceding one, I conceive the last must prevail, because it is the final determination of the testator ; unless, indeed, the intention of the testator, apparent from other parts of the will, leads to a different conclusion. 4 Mass. Rep. 215. 1 Mad. Chan. 553. The plaintiff’s right, then, to the demanded premises, became perfect upon the intermarriage of his mother. On the trial, parol evidence was offered to shew, that the testator instructed the person who drew the will, so to write it, as to give a title, in all events, to the widow, during the minorty of the children. This evidence was rejected, and the question occurs, whether it should have been admitted. The general rule, which forbids the admission of parol testimony, to explain, controul or vary written instruments, is applicable to this case; and the evidence was properly refused. If admitted, it would have the effect of passing lands, by parol, to a devisee, which the statute does not permit. Mistakes in wills, where the mistake is apparent from the will itself, are corrected by a court of chancery. Should the defendant think proper to apply in that quarter, it will then be [35] tíme enough to decide, whether this mistake can be corrected, consistently with the principles, by which the courts of equity are governed in like cases. The motion for a new trial is to be refused. The other judges were of the same opinion. New trial not to be granted.