Ingersol v. Knowlton

Hinman, J. The only question in this case, arises upon the construction of the will of Simon Ingersol; and the ques473 lion is, as to the estate which his daughter Sarah, now the wife of the defendant, took, in that part of his estate, the homestead. If, as the plaintiff claims, she took only an estate while she remained single, and her mother lived, then the construction given to the will, by the court below, was wrong, and a new trial should be had ; but, if she took either an estate for life, or any greater estate, then the judgment is confessedly right. The question depends upon the intention of the testator, to be collected from the whole will, by the aid of such settled rules of construction, as are applicable to the case. That part of the will containing this devise to Sarah, is certainly very inartificially drawn up; but we think there would be more difficulty, in determining, precisely, what object the testator had in view, by so limiting the estate, that, in the event of her marriage during the life-time of her mother, her interest in it was to be suspended until her mother’s death, than there is, in determining what interest he intended she should have in the premises after her mother’s death. Upon this, the only material enquiry, we do not think there is much doubt or difficulty. The words of the will are, (í I give to my daughter Sarah Ingersol, the use of two thirds of my homestead where I now live, together with the use of two thirds of the buildings, so long as she remains single and her mother lives.” If the testator had stopped here, the meaning, beyond all doubt, would have been in conformity to the plaintiff’s claim, and she would have taken, at most, only an estate during her mother’s life ; and her marriage would have defeated even this. But the testator goes on and adds, “ and at her mother’s decease, said tract, the whole of it, to be sold, by my executors, if they think best, and the avails of it to go to the said Sarah; otherwise, if not sold, the use to be to her for her benefit.” It is clearly the duty of the court, to give effect to the whole will, and all the words contained in it, if it can be done; and the words are all to be considered, in order to ascertain the intention of the testator. But the construction contended for, by the plaintiff, would demand of us the total disregard of the two last provisions in this devise to Sarah. By this last provision, the executors had power to sell this property ; but the moment they sold, the avails all belonged to Sarah, absor, [474] fotely; and this is wholly irrespective of her remaining single, or not. The only restriction there is upon the power of the executors, is, that they could not sell during the life-time of ⅜⅛ mother. If there could be any importance attached to the discovery of the objects of the testator, in limiting Sarah’s two thirds of the homestead, first given to her, in the manner he has done, it might not, perhaps, be an improbable conjecture, that, as in the same will, he had given the use of one third of these premises to his widow for life, he did not intend that Sarah should have it in her power, by her marriage, to bring into the family mansion, a family, to the inconvenience of her mother, during her life. However this may be, it is very clear, that immediately on the decease of his widow, Sarah was to have the whole avails of this property, if sold, but if not sold, the use was to be to her for her benefit. And this last provision, we think, gives to Sarah the fee in this property. In case the executors sold the property, we have already seen, that Sarah should have the avails, absolutely. Now, it would be very extraordinary in the testator, to authorize the sale of this property, and give the avails absolutely to his daughter, when sold; and yet limit her to a life estate in the realty, if the property should remain unsold. The testator, doubtless, could do this, if he chose; and courts would be bound by his pleasure, in this respect. But they must require, and ought to require, that in such a case, his meaning should be plainly and unequivocally expressed. But the testator has intimated no such meaning, provided this property was not sold ; but, on the contrary, has given the use to Sarah for her benefit. The inference from the use of this language, in connexion with that immediately preceding it, and in which he had given the avails of this property to Sarah, absolutely, if sold, is very strong, that he intended, by the words, “ use to be to her for her benefit,” that she should take as great an estate m the realty as he had given her in its avails, if sold by the executors. And when it is considered, that one of the executors was a son and heir of the testator, and one of his residuary legatees, of course interested not to sell, if by so doing the property would eventually fall to him, the inference is irresistible, that the testator could not have intended the creation of such a trust, and connected with it, in the same instrument, [475] such an interest in the trustee, as would leave it morally certain, that the trust would not be executed. We are, therefore, of opinion, and advise the superior court, that no new trial should be granted. In this opinion the other Judges concurred. New trial not to be granted.