Eberts v. Eberts

Cooley, J. It is conceded by counsel for defendant Joseph M. Eberts that the general rule of construction of wills requires the words “surviving children” to be interpreted as intending only those who were surviving at the death of the testatrix. Indeed the cases of Hansford v. Elliott, 9 Leigh, 79, and Martin v. Kirby, 11 Gratt., 67, upon opinions in which some reliance is placed by them, fully recognize this rule, and it is not questioned anywhere. But it is said that this is merely a general rule, and in any particular case parol evidence of the circumstances under which the will was executed may be received to show that such was not the testatrix’s intent. We concede that the surrounding circumstances may be shown, and that sometimes they áre very conclusive that the intent was different from what might be inferred from the language of the will interpreted without the aid of any extrinsic evidence. But in' this case the parol evidence merely showed that there was a class of persons answering the description of surviving children of her brothers at the time the will was made, and also a class answering the same description, but less .numerous at the time of the testatrix’s death. But whether she intended the one or the other, was left on the evidence wholly to conjecture. We may guess that she meant those who answered the description when the will was- made; but the extraneous evidence brings into the, case no element of certainty whatever, and a construction to that effect must be based upon inference and conjecture. We are not at all inclined to follow arbitrary rules of construction to the overturning of a testator’s real [407] intent; but the rule that makes a will speak from the testator’s death is neither arbitrary nor unreasonable; and there cannot be the least doubt that in the large majority of cases it corresponds to the actual intent. It thus becomes a rule of property, and should not be set aside on extrinsic evidence in any case* unless the court, on placing itself in the position occupied by the testator at the time he made the will, can clearly see that" such was not his meaning. Wé cannot say that such is the case here. The statute (Comp. L., § 4349), on which some reliance is placed, cannot help this, defendant. When we find that the will only makes the gift to persons who survived the testatrix, there is nothing to go to the issue of others who died before she did. The decree must be modified to conform to this view. Marston, C. J., and Campbell, J., concurred.