Estate of Goodrich

Cole, J. On the question of construction raised by this appeal, the intention of the testator, as expressed in the will, appears to be very plain. This intention is to govern, if it is possible to give it effect, when clearly indicated upon the face of the will. What property, then, did the testator intend to charge with the support of his widow, or with the payment of her annuity, providing she did not choose to live on the home farm ? It seems to us obvious from the various clauses of the will, that his intention was to charge her support upon the home farm, and to make that farm and the property bequeathed [497] with it the primary fund or means chargeable with her support. And in case the widow should elect to take the annuity provided in the will, then the devisee of the home farm was the person liable for its payment, and it was made a charge upon the property which he took by the will. This, we think, is the clear intention of the testator, as expressed in his will; and this intention is not to be defeated by any nice or ingenious construction which astute counsel may suggest. By the first clause, the home farm, with various articles or kinds of personal property,, is devised to Ezra for his use during his natural life. Then follows this clause: “ My good wife is to have a home and good support as long as she lives on the home premises, board and clothing, money for reasonable expenses ; or, at her option, $200 per year while she remains my widow, and $100 a year thereafter during her natural life.” Here the manifest intention is, to provide for the support of his wife on the. home farm; that is, her maintenance and reasonable expenses were to come from that source, and it was the property primarily to be resorted to for that purpose. If there were any doubt upon this point, it is removed by the subsequent clauses of the will. The will directs that the notes, United States bonds, other bonds, and debts due the testator or to become due, should be collected, and out of the fund arising from this source the mortgages mentioned, and the testator’s other debts, should be paid. The balance or remainder of this fund was to go into the hands of a trustee, chosen by his wife, son and daughter, who was directed to invest the same in United States or other safe bonds, and the interest and principal were pledged to the support of his wife, “if all else should fail.” The provision made for the support of the wife in this clause is auxiliary and subsidiary to some other means 'provided; because the language is, <! if all else should fail,” then the interest and principal of this fund are “pledged ” to the support of his wife. Now, what other provision had the testator made for the support of his wife, which he thought [498] might possibly fail, when he made this a,dditional provision ? For, as observed by the' counsel for the respondent, it is very evident that the residue of the personal estate was not to be chargeable with her support until some other fund or provision had failed. We find no other provision in the will for her support, unless in the first instance it was primarily’made a charge upon the home farm, as we have no doubt the testator intended it should be. The learned counsel for the administrators contends for a different construction of the will. He insists that it was the testator’s intention to make the support of the widow, or the payment of the annuity in case she did not choose to live on the home farm, payable out of the trust fund arising from the cash, notes, bonds and debts due the estate. But there are insurmountable difficulties attending such a construction. . What did the testator mean by the language that the principal and interest of this fund should be resorted to “ if all else should fail," if her support was primarily chargeable on that fund? It makes nonsense of that clause of the will. It is apparent that the clause plainly and necessarily relates to some other provision which had been made for her support, and which the testator feared might possibly fail for some cause. In that event the interest and principal of this fund was devoted to her support, or the payment of the annuity, but could not otherwise be resorted to. We feel we should be doing great violence to the plain meaning of the language used by the testator, were we to adopt the construction contended for by the appellants’ counsel. ' By Ike Court — That part of the judgment of the circuit court which, is appealed from, is affirmed.