Minor v. Ferris

Stores, J. We shall confine ourselves to the question ar- gued hy the counsel in this case ; which is, whether, by the true construction of the will of the testator, his personal property, excepting that which was specifically bequeathed, and what should be wanted for the payment of debts and general legacies, was given by him absolutely and unqualifiedly to his sister, on his decease ; or, whether it was given to her, subject to the trust, on which the real estate had been devised, that it was to constitute and remain a fund, so far as it was required, for the support of his wife during her life. The frame of this will is so inartificial, and its language so loose, repetitious, and apparently (although as we think, not really) inconsistent, that it is difficult to ascertain, with any great degree of certainty, what was the precise intention of the testator; but we are induced to think, on the whole, that it ought to receive the latter construction. After devising, in the first part of the will, his real estate, for-the henefit of his wife, with a direction, that it shall be sold by his executors, and that the proceeds shall be invested in some safe property for her, “ that the interest may support her during her life,” he bequeaths to his sister, (for whose benefit this action is brought,) if living at the death of his wife, and if not, to her children, whatever of the said property or avails thereof may be then left. He then bequeaths to his said sister, or her heirs, at his decease, in general and unrestricted terms, all his personal estate. If the extent of the sister’s interest in the personal property were to be determined merely by the terms of this latter clause, she would [377] be undoubtedly, entitled to it, absolutely and without qualification, and, therefore, it would not be affected by any trust in.favor of the testator’s wife. This would, however,' be but a very imperfect mode of ascertaining or effectuating his intention with regard to it. For that purpose, it is necessary to look at every other part of the will, bearing on the subject, and also to the situation and circumstances of the testator ; and, in doing this, we have become satisfied, notwithstanding the absolute terms of the above clause, in the first place, that there was a general and prevailing intention, on the part of the testator, that his personal property should be held as a trust fund, during the life of his wife, for her support, so far as it might be necessary for that purpose, and in the same manner as he had before provided for that purpose, in respect to his real estate. In the next place, there is, in a subsequent clause, an express qualification to the bequest' of the personal property to the sister above mentioned, by which it is provided, that she shall have that property, only in case the avails of the real estate shall be sufficient for his wife’s support. From these we deduce, in the last place, a clear implication of a gift or disposition of that property to the wife, or for her benefit, during her life, on the same terms as those on which the real estate had been devised. 1. Respecting the general intention of the testator, we think that there can not be' a doubt, that it was his chief purpose to provide, at all events, a support for his wife, during her life, out of his estate. He was most tenderly attached to her. She was hopelessly insane, and without any means of her own for her support, and would, therefore, on his death, be entirely helpless, and dependent on his bounty. This was well known to him, and evidently was a source of constant anxiety: and this final disposition of his property was made under the influence of, and with reference to, these leading facts. > This is shown, by his frequent mention of her, [378] and recurrence to her situation and necessities, in the will,— by the solicitude he shows on her account,—by the constant thoughtfulness which he evinces, in regard to the adequateness of his real estate for her support,—the terms in which he expresses the opinion, that it will probably be sufficient for that purpose, which seem to imply a doubt whether it will be, unless it is both well sold and well invested,—and, above all, by the immediate repetition of the bequest of his personal estate to his sister, with the provision subjoined to it, “ if my wife has sufficient to support her.” 2. We consider that expression to be a qualification, not only of the bequest to which it is immediately superadded, but also of the bequest to the sister, of the same property, contained in the former part of the will, which is exactly the same, in its import, and nearly so, in its very terms. The last bequest being only a repetition of the other, the qualification of the one thus repeated is a qualification of that of which it is a repetition. It is a restriction of the self-same idea or determination of the testator’s mind, and therefore detracts from the unlimited force or import of the previous expression of it. Such, we think, was his intention. It appears to us, that the first bequest was reiterated by him, and the restriction added to it, obviously for the purpose of explaining his real meaning, in the first bequest, and showing that he did not intend to have it understood in an unrestricted sense ; or, that he had changed his first purpose, to make the bequest unrestricted, and concluded thus to qualify it; in which case, the last bequest, on the familiar principle applicable to wills, would prevail in preference to the first. 1 Jarman on Wills, ch. xv. 3. From these views of the general intention of the testator, and of the restriction to the bequest of the personal property, we think that an implication of a bequest of that property to the wife, of a similar character to that of the real estate, is fairly inferable. That such a bequest may [379] arise, by implication, is well settled; and we are of opinion that it would not be going farther than several of the adjudged cases, to infer it, in the present instance. The superior court is therefore advised, that the rejoinder is sufficient. In this opinion, the other judges concurred. Rejoinder sufficient.