Murphy v. Black

Day, J. — Appellants claim that the will of Jane Murphy, and the joint will of James and Jane Murphy, must be construed together, and that the effect of them is to give a life estate to James Murphy, with remainder in fee to the children of Paul Black. The effect of these wills can be determined only by construction. It was no part of the duty of the probate court to place a construction upon them when they were offered for probate. The court determined that the' joint instrument should be admitted as duly executed. That is, that the persons executing it were of sound mind, not under any undue influence, and the instrument was properly attested as a will. Whether it should be considered in connection with the separate will of Jane Murphy, qualifying and limiting it, and cutting down to an estate for life only one which, by the [491] terms of the will, was an absolute estate, or should be treated as an instrument unknown to, unrecognized and unauthorized by the law, the court did not undertake to determine. And in so ruling the court acted rightly. These questions can be properly determined only when the interests of the respective, legatees come to be settled. There was no error in recognizing the executor named in the separate will of Jane Murphy. The joint instrument declares that it is executed “for th.e dis-' position of our property, or either of us at both of our deceases.” Without undertaking to place any construction on this anomalous bequest, the propriety of recognizing the executor named in the will of the party who'is dead, rather than the one named in the will of two parties, one of whom is living, is too obvious to require discussion. The record discloses no error. Affirmed.