Duncan v. Harper

The opinion of the Court was delivered by Moses, C. J. The doctrine of lapse, as applied to legacies, cannot be interposed for'the solution of the rather novel question which arises in this case. The person named as legatee was not only dead [83] at the date of the execution of the will, but the testator long before had knowledge of the fact. The disposition in favor of the daughter, or of any who could claim by or through her, was senseless, absurd and nugatory. If, however, from a construction of the words permitted by the rules applicable to the interpretation of wills, they can be held to confer a direct gift to the children, not transferred through the parent, who could not take by reason of her death before the date of the will, such effect should be given to the legacy as will save it from falling into the residuary estate. Mr. Jarman, in his Treatise on Wills, Vol. 2, p. 683, recognizes the distinction between a claim founded not on a mere clause of substitution, but on a substantive, independent, original gift. The primary rule which governs the construction of wills requires that effect should be given to the intention of the testator to be ascertained from the face of the whole instrument. To do this “the Court is permitted to look at all the circumstances under which the devisor makes his will, as the state of his property, of his family and the like.” — 2 Jarman, 472. It is well expressed by Ch. J. Marshall, in Finley, et al., vs. King’s Lessees, 3 Pet., 377 : “ The intent of the testator is the cardinal rule in the construction of wills, and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail, although, in giving effect to it, some words should be rejected or so restrained in their application as to change their literal meaning in the particular instance.” The legacy to the daughter was impossible. The testator could not have- intended any benefit to her. We are not to account for the follies of men, and required to discover a motive for an act so entirely irreconcilable with common sense. We cannot, however, fail to recognize the fact that ho intended the one thousand dollars and the negro girl to be separated from “the balance of the proceeds of the sale of his estate, both personal and real, and whatever else he may be possessed of,” which he includes in his residuary estate, and in which he contemplated that the legacy now in question should not fail and pass. To allow it to be so included would disappoint his intention by defeating his purpose. Technical words must be understood according to their legal import, unless a testator manifest a clear intention to the contrary. — 2 Roper on Legacies, 1461; Clark vs. Moseley, 1 Rich. Eq., 396. [84] It is not to be denied that the words “ bodily issue/’ as used in this clause of the will, are generally to be taken as words of limitation ; but so to hold them here would defeat the plain purpose of the testator, by permitting the subject of the gift to be enjoyed by the residuary legatees, which would be contrary to the expressed intent. It is said, in all the elementary works on the subject, that though the words “heirs and issue” are usually to be accepted, when connected with testamentary dispositions, as words of limitation, yet they may be received as denoting children, if from the context of the instrument such an intention can be discovered, more especially if thereby it will prevent a specific legacy from falling into the disposition of the residue of the estate. Perhaps the rule is no where better or more concisely stated than by Lord Eldon, in Christopher vs. Naylor, 1 Meri., 320, in the following words: “If upon fair reasons deduced from the words of the will, all the contents, design and tenor of it, as manifested by its contexts, shew the word ‘issue’ to be meant in a more restrained sense, that sense may be given to it.” In regard to the word “issue,” as was said in relation to that of “heirs,” in Bailey et. al. vs. Patterson, 3 Rich. Eq., 158, quoting from Jarman, “it is always open to enquiry whether a testator used the word ‘ heirs ’ according to its strict and proper acceptation, or in a more inaccurate sense, to denote children, next of kin, &c.” Although we are permitted to look for the meaning of the testator to the context of the whole will, still, before the legacy can vest in the party for whose supposed benefit it was intended, we must find words of sufficient import, according to the canons of interpretation, to justify an application of them to the particular individual they were intended to designate. If the deceased daughter was not the object of the testator’s bounty, and though the words “bodily issue” were meant to refer to her children, still, to entitle them to the legacy, the disjunctive “or” must be changed to the copulative “ and.” When it is apparent from the intention of testator that the word “ or ” is used instead of “ and,” and vice versa, the Court interferes to change the word. — 1 Jarman, 443 ; 2 Rop. on Leg., 1405, 1410 ; Adams vs. Chaplin, 1 Hill Eq., 265 ; Shand vs. Rogers, 7 Rich. Eq., 422 ; and various other cases in our own reports. To affectuate the intention here, to enable those who, from the tenor of the whole will were clearly, as to this specific legacy, the persons designed to take, effect must be given to the words “ bodily issue ” [85] as importing words of purchase and not of limitation, for otherwise the legacy would be enjoyed by those having an interest in the residue of the estate, .in which the testator never designed the property referred to in the clause under review to be included. The decree is affirmed and the motion dismissed. Wright, A. J., and Willard, A. J., concurred.