Kellogg v. Mix

Park, J. It is manifest that lhe testator intended to give some portion of the income of his estate to his wife. He says in the fourth paragraph of his will: “ I give and bequeath to my beloved wife, Clarissa Champion I'sham Mix, in trust for the maintenance of herself during her life, and the maintenance of my daughter Eliza E. Mix, so long as she remains single.” The words “ in trust,” so far as they apply to the maintenance of the wife, are inoperative, and may be stricken out, and the passage would then read substantially as follows: “ I give to my wife, for the maintenance of herself during her life, and in trust for the maintenance of my daughter so long as she remains single.” The object in view is the maintenance of the wife and daughter, and, considering the estate left by the testator, no one can doubt that he intended to make, and supposed he had made, ample provision for these purposes. We might hold, without doing violence to the language used, that the giving to the wife for the maintenance of herself during her life, is in effect giving her maintenance out of his estate for the time specified; and so likewise of the daughter. If a man says in his will, I give to be expended in the erection of a dwelling house of certain dimensions, costing the sum of ten thousand dollars, he in effect gives the sum of ten thousand dollars to be expended in the manner described. But inasmuch as it is evident that the testator inadvertently omitted to state in the paragraph quoted what portion of the income of his estate he intended to give for the maintenance of his wife and daughter, and inasmuch as an inspection of the will renders it definite and certain what the omission was, we choose rather to supply the omission by constructively inserting what the testator intended to insert, than to hold that the maintenance of the wife and daughter for the time specified was given by the will, and then ascertain from other parts of the document what portion of the income was considered by the testator necessary for the purpose. • It is familiar law that in the construction of wills the intent of the testator, ascertained from the will itself, is the principal rule. In the light of this rule we think it is clear [246] that the fourth paragraph of this will should be construed as if it read as follows: “After paying all my just debts, and erecting a suitable family monument to our memory, and after deducting such sums as the trustees shall in their discretion from time to time pay to my son, George EL Mis, according to the terms of this will, I give and bequeath to my beloved wife, Clarissa Champion Isham Mis, the net income of my estate, in trust for the maintenance of herself during her life, and the maintenance of my daughter, Eliza E. Mis, so long as she remains single.” We think this construction should be given for the following reasons: 1. The testator has bequeathed his whole estate, with the esception of a few legacies, to the petitioners, in trust “ for the uses and purposes .following; ” thereby implying that he had disposed of the whole of his estate by the subsequent clauses of the will. 2. He has given the entire income ol his estate to his children after the death of his wife. 8. He has made no other disposition of the income during the life of his wife. 4. He has given nothing to his wife unless it be the income. 5. He has prohibited the appropriation of the principal of his estate, or any part thereof, before the death of his wife, without her consent; thereby implying that to do so would deprive her of some portion of the estate bequeathed to her. 6. - He has declared in the fifth paragraph of his will, that his wife shall have the entire use of her portion of the estate until her decease; thereby implying that the use of some portion of the estate had been given to her. 7. That part of the fourth paragraph of the will in relation to the maintenance of the wife and daughter is wholly inoperative, unless the income,- or the maintenance, which amounts to the same thing, is given. These considerations furnish unmistakable evidence that it was the intention of the testator to give his wife the net in [247] come of his estate for her support during her life and for the support of his daughter during her maidenhood. In coming to this conclusion we think we have not gone farther than other courts have gone to give effect to the intent of a testator made manifest by the terms of his will. In Wheeler v. Withers, 16 Simons, 505, the court supplied the words, “ under twenty-one years of age.” In Cotton v. Stenlake, 12 East, 515, the words, “ during their lives” were rejected, thus making a life estate an estate in fee simple. In Holms v. Williams, 1 Root, 332, our court supplied the words, “ before he arrived at full age,” in order to effectuate the intent of the testator. In Chappel v. Avery, 6 Conn., 31, Judge Bristol says, “ Mistakes in wills, where the mistake is apparent from the will itself, are corrected by a court of chancery.” Redfield, in his treatise on Wills, 454, has this general proposition: “ It is an established rule of construction of wills, that, where it is evident the testator has not expressed himself as ho intended to have done and supposed he had done, and the defect is produced by the omission of some word or words, and where it is certain beyond reasonable doubt what particular words were thus omitted, they may be supplied by intendment, and the will read and construed as if those words had been1 written in the place or places where they were intended to have been.” A similar rule may be found in the second volume of Williams on Executors and Administrators, on the 978th page, in these words: “ To effectuate the clear intention as apparent on the whole will, words and limitations may be transposed, supplied or rejected.” A similar case to the one under consideration may be found in 1 Coldw. (Tenn.,) 461, Eatherly v. Eatherly. See also Freeman v. Freeman, 8 Vin. Abr., tit. “Devise,” 51. We therefore advise the Superior Court that the will in question is valid, and ought to be established; and that Clarissa 0.1. Mix, widow of the testator, is entitled to receive the net income of the estate, remaining in the hands of the [248] trustees after deducting such sums as they shall, from time to time, pay to George H. Mix by virtue of the power and discretion vested in them by the terms of the will, the amount so received to be held by her in trust for the maintenance of herself during her life and of her daughter, Eliza F. Mix, so long as she remains single. In this opinion the other judges concurred.