Hart v. White

The opinion of the court was delivered by Bennett, J. It is claimed by the appellants, that under the will of her husband, the widow took, but a life estate, in that portion of the real estate devised to her; and that the heirs upon her decease, were entitled to the reversion; while on the other hand it is claimed, she took a fee. The clause in the will, under which the question arises, is thus expressed; “ I give to my beloved wife one third of all my personal and real estate, and in addition to that, I give her one cow, ten sheep, and one hundred dollars in money, to have at her disposal during her natural life, or so long as she shall remain my widow.” It is not claimed by the plaintiffs, but what the widow would have taken an estate in fee, had it not been for the concluding part in this item in the will, and we apprehend, the counsel were right in yielding so much. The word estate, used in a will in its application to real property, may be used to express either the quantity of interest devised,, or to designate the thing devised, or both; and the sense in which it is used must be determined from the will itself. The rule laid down in the books, is, that though it refer to some particular lot of land, yet it will carry a fee, unless restrained by some other expression. 4 Kent’s Com. 598, n. a. The question then is, is the operation of the word estate restrained by the closing paragraph in this item in the will. There may be some ambiguity, as to the meaning of the testator.' We should carry out that intention, if it can be done consistently with the rules of law; and in this case, the great inquiry is, what was his intention ? The grammatical construction of this item in the will is, I think, [268] somewhat obvious. The testator, first gives to his wife one third part of all his real and personal estate ; and then proceeds, and “ in addition to that,” he gives her one cow, &c., to have at her disposal during her natural life, or so long as she shall remain his widow. It is apparent, that it was the intention of the testator to give the wife a life estate in the articles specified in the way of addition to the first clause in the bequest, with a power of sale. But we think, the natural construction is to confine the qualification or limitation to what is given to the widow, Jyy way of addition. The two parts of this item in the will of the testator, are distinct and independent, and each complete in itself. He first gives his wife one third part of all his personal and real estate; and then increases that amount by adding to it a life estate in what is subsequently particularly specified. It has been said by Judges, that the word item is a usual word in a will to introduce new and distinct matter, and that consequently a clause thus introduced is not to be influenced by, nor to influence a precedent or subsequent sentence, unless it be in itself imperfect and insensible, without such reference. Hopewell v. Arkland,, 1 Talkeld 239. Much more clearly do the words, “ and in addition to that,” import the introduction of new and distinct matter from that, which had gone before, than what would have been done by the word item. In the case of Doe v. Wright, 3 Term Rep. a devise was made to J. W. of all the lands of the testator in A.; and also to J. W. all the estate of the testator in B.; and it was held that only a life estate wrs given in the lands in A.; that is, that the word estate in the last clause, could not enlarge the operation of the word “lands ” in the first clause, upon the ground that the two clauses were distinct and independent. The case cited in the argument from the 4 B. & C., is very like the case now at bar. In the construction of a will, the grammatical one, if obvious should not be departed from, unless it would lead to absurdity, or unless there is enough in the will to satisfy the mind, that it was not the intention of the testator to have it construed according to its grammatical construction. In the present case there is nothing absurd or unreasonable in the idea, that the husband should wish to increase the widow’s portion somewhat above one third of his estate* and there is nothing in any other portion of the will to [269] control or qualify the clause in question. Indeed, I think, the other parts of the will countenance the construction we give to that part of it now in question. It can hardly be supposed, that the testator intended, that a portion of his property should be disposed of as intestate property; and if we were to hold that the wife took but a life estate in the lands, I rather apprehend such would be the ■ effect, as to the reversion of the widow’s portion. Where he uses the expression, as to the remainder of my property, it may with propriety be considered as descriptive of, and designating the subject matter of the property given the children. The words, “ and in addition to that,” introduced new and distinct matter, and the qualification in the last member of the paragraph is not to influence what has gone before, which is perfect and sensible in itself. The case of Finny v. Evartson, 4 M. & S. 58, cannot control this case. In that, the court held that it was the intention of the testator to reserve to the close of the will the pointing out the kind of estate, he devised in each clause of the will, and this intention was inferred mainly from the numerical arrangement. Though the case from the 4 M. & S. has an analogy to the case under consideration, yet it is not so identically the same as some which have been referred to upon the other side. This construction of the will renders it unnecessary to decide any other questions arising under the pleadings. The decision of the court below is reversed, and the decree of the court of Probate is affirmed.