Hellwig v. Bachman

Bakes, J. There seems to be but little room for construction in the third clause of the will of Peter Kennel], deceased. The primary and controlling principle in construing a will, is to ascertain and give effect to the intent of the testator. Here his words are plain, clear and unambiguous, and the literal terms used, whether regarded in their technical sense or in their general and popular sense, involve no inconsistency, uncertainty or absurdity. Barbara Kennel! took by that clause an estate for years, commencing on the 1st day of March, 1886, and ending with the last day of February, 1892. This estate was a chattel real, and on the death of Barbara, in September, 1886, it vested in Hippolyte Jaequat, her executor, and under the seventh clause of her will the executor held, and still holds it in trust, to collect the income from said lands until the end of the term, and divide and pay such income as directed by his testatrix. The last sentence of said third clause is not inconsistent with, nor does it limit or qualify the preceding sentences of the clause; on the contrary, by the use of the concluding words C! as aforesaid,” it expressly adopts and re-affirms the antecedent ma tier. If it had been the intention of Peter Kennell to give to his wife a conditional estate for years, to end in the event she died prior to the expiration of the term of six years, it must be presumed he would have so provided in his will. The courts do not assume to make wills for dead men; they merely interpret the wills they have made for themselves. In this ease we find nothing either in the will or in the evidence dehors the will to indicate the testator had any intention to do otherwise with his property than was plainly expressed in his will. The argument of counsel for appellees is based upon the merest surmises, and the authorities they cite are good enough law, but have no application to the case. A fair statement of the principal claim of appellee is, in substance, this: An estate for years is inferior to an estate for life, therefore, when the donee of an estate for years dies before the expiration of the term given, the estate for years is thereby terminated, and this—because otherwise an estate for years would be superior to an estate for life. This argument is radically unsound, both in its premises and conclusion. An estate for years is inferior to a life estate in respect to quality only, and not necessarily in respect to quantity or value. One in whom an estate for life is vested, is a freeholder; but one to whom is given or conveyed a term of 500 years is only a tenant for years. The question here is, what the estate and interest of Barbara Kennell in the premises in controversy actually were; and it is wholly immaterial that she may have felt uncertain what her legal rights were under the will of her deceased husband, in respect to whether or not her executor would be entitled to hold the land till the end of the term, and collect the rents. The findings and judgment of the trial court were erroneous. Appellee has no right of action. The judgment is reversed and the cause remanded. Reversed and remanded.