Bond's Appeal from Probate

Hinman, C. J. Taking into consideration the condition of the testator’s family at the time he made his will, and which remained the same up to the time of his decease, and with this aid interpreting the language of the will, we have no doubt that he intended to make the same provision for the representatives of his deceased children as for those who survived him. The only question in the case is, whether he has expressed this intention so that we can give effect to it consistently with the rules of law. Now the main object of the testator was undoubtedly to make a suitable provision for his widow. This he could only accomplish by a will, because he gave to her a much larger share of his property than she would have taken under the statute of distributions. Having done this, it was natural that he should proceed to dispose [190] of the remainder of his estate by will, although he intended the same disposition of it which the law would have made in the absence of a will. Making his will, therefore, for the purpose of providing for his wife, and intending to give her the use of his whole real estate, and only disposing of the remainder because it would otherwise leave a portion of his property to be settled as intestate estate, it is not to be expected that very much thought or care would be bestowed upon the precise language in which this remainder was disposed of. Hence he simply says at the close of the devise to his wife, “ The remainder thereof I give and devise to my children, and their heirs, respectively, to be divided in equal shares between them.” It is a well settled rule of construction in respect to wills, that a court may place itself in the condition of the testator in respect to his property, and the situation of his family; or, as expressed by Wigra.ni in his fifth proposition with regard to the construction of wills, • “ for the purpose of determining the objects of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family, and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator.” In the application of this proposition to the facts of the case, we find the testator, at the time his will was made, and at his death, had four children living, and he also had had four other children who had deceased, each leaving children, who of course came within the description of heirs of children of the testator. What then did he mean by the words “ and their heirs,” as used in the residuary clause of this will ? Were they used as mere words of limitation, for the purpose of indicating that his four living children were to take the fee in the residue of his property, or were they used to designate a class of persons standing in the relation of grandchildren, whose claims upon him, in consequence of their parents’ death, were [191] equally strong with those of his surviving children ? We pay no attention to the evidence going to show that his affection was as great for these grandchildren as for his surviving children, and that some of them seemed to have even greater claims upon him. Perhaps this evidence was inadmissible. It is, we think, unnecessary to determine that question, as it seems to us to be enough that there appears to be no reason to suppose that he had any preference for his surviving children over his grandchildren. That these were not words of limitation merely, is apparent from the circumstance that they were wholly unnecessary for that purpose, since the words “estate,” and “ the remainder thereof,” were ample to pass the fee; still, had they stood alone, without any thing added to them, the grammatical construction might have compelled us to consider them as used for this purpose, whatever we might think to have been the real intention of the testator. But he adds the word “ respectively,” which, as a word of division or separation, shows that he had in his mind some separation or distinction other than between the four surviving children, for he goes on and superadds, “ to be divided in equal shares between them,” which renders the word “ respectively ” entirely nugatory and useless, if the appellant’s construction is the true one. To give the word any force or meaning, therefore, it is necessary to suppose that he intended a separation between his children and the heirs of children, and that by the words “ and their heirs ” he referred to the heirs of other children than the four surviving children, and that it was between these two classes of persons, both of whom he intended should take portions of this residue of his estate, that he intended to distinguish by the use of the word “ respectively.” If the appellant’s construction of the will is the correct one it is apparent that it would not alter its meaning in the slightest degree to drop the words “ and their heirs.” It would then read, “ the remainder thereof I give to my children, respectively, to be equally divided between them,” from which it is apparent that the word “ respectively ” has no meaning whatever, and is not merely inoperative but seems quite out [192] of place; whereas, if we supply what was, as we think, understood, and therefore intended, it would read, “ the remainder thereof I give to my children and to the heirs of my children respectively, to be equally divided,” &c.; in which case no one, we presume, would claim that the meaning was not such as it was held to be by the court of probate. And this leads us to remark, in respect to a point suggested but not very much pressed, that if the construction was not such as the appellant claims, the words “ and their heirs ” would include the heirs of the child who died in England leaving no children, and for this cause the decree of probate should be reversed. We have no doubt that by the use of the word “ heirs,” in this will, the testator meant to designate the children of those of his children who were dead, and had no reference to the general heirs of his infant child whose death was previous to the testator’s coming to this country. Nothing is more common among unprofessional persons than the use of the word heirs as synonymous with children ; and it is only the circumstance that he used it to designate the persons who, being in fact children of persons that had deceased, were in fact also the heirs of those persons, and consequently correctly designated as such, that seems to render that use of the word in this case technically correct. But this is an accidental circumstance, which ought not to alter the construction of the will. We are therefore of opinion that the superior court should be advised to affirm the decree of probate appealed from. In this opinion .Butler and Dutton, Js., concurred; Sanford, J., dissented.