Oades v. Marsh

Grant, J. (after stating the facts). The learned counsel for the complainants insist that the case comes within the rule as stated by Wigram in his fifth proposition : [171] “ For the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. * * * Examples illustrating the fifth proposition above stated might be multiplied without end. They appear to justify the conclusion that ‘ every claimant under a will has a right to require that a court of construction, in the execution of its office, shall —by means of extrinsic evidence—place itself in the situation of the testator, the meaning of whose language it is called upon to declare.’ It follows that if, with the light which that situation alone affords, the testator’s meaning can be determined by a court, the court which so determines does, in effect, declare that the testator has expressed his intention with certainty, or, in other words, that his will is free from ambiguity. There is no other criterion of legal certainty in a will.” Wig. Wills,'142, 161, 162. See, also, 1 Jarm. Wills, 422, 423 (6th Ed. 428); Tuxbury v. French, 41 Mich. 7; Dakin v. Dakin, 97 Mich. 290. The learned counsel for the appellant contends that the decree was not, in effect, a construction of the will, but a reformation of it; that there is no ambiguity in its provisions ; and that, therefore, it comes within the rule stated by Schouler: “We may lay it down, then, at the outset, that where the language employed in the will is clear, and of well-defined force and meaning, extrinsic evidence of what Avas intended in fact cannot be adduced to qualify, explain, enlarge, or contradict this language, but the will must stand as it was written.” Schouler, Wills, § 568. See, also, 1 Redf. Wills, chap. 10, § 39; Wilkins v. Allen, 18 How. 385. [172] The rules of law to be applied to the construction of wills are not in dispute, and are correctly stated by these learned authors. The province of the court in each individual case is to determine whether it comes within or without these well-established rules. This leads us to a statement of the facts, about which there is no dispute: Mr. Oades owned no such property as the steam barge John Oades. There was no corporation known by that name. He owned no stock in, or title to, the steam barge John Oades. There was a corporation organized under the laws of this State, known as the Peninsular Transit Company, with 1,880 shares of stock, of the par value of $50 each. Mr. Oades owned 600 shares of this stock. The sole property owned by this corporation was this barge, which he and his son had formerly owned, and had transferred to the corporation. When the stock was issued, he asked to have his shares issued to him in $5,000 lots, and six certificates were issued in accordance with this request. Before the company was organized, and it was not determined what the par value of each share should be, Mr. Oades spoke of his interest as shares of $1,000 each. After the organization and the issuance of the certificates, he spoke of and treated them in the same manner. When he drew his will, he handed to the scrivener a memorandum of his assets, in which he referred to this stock as “30 shares-stock steamer John Oades, $30,000.” This represented the entire amount of his stock in the corporation. Other memoranda were produced, in which he spoke of it in the same manner. The evidence leaves no doubt but that he always spoke of and treated a share as being of the par value of $1,000. It is apparent that extrinsic evidence must be resorted to in order to identify this property described in the will, and which constituted the great bulk of his assets. This, of necessity, opened the door to the admission of testimony which would enable the court to “put itself in the place of the testator, by looking [173] into the state of his property- and the circumstances by which he was surrounded when he made the will.” Counsel for the appellant contends that when it is shown that this property was transferred to a corporation, and that he had shares in that corporation, the expression, “shares of stock in the steam barge John Oades,” means the same thing as the shares of stock in the corporation. The terms of the will do not say so, and, in our judgment, refute this conclusion. It is evident upon the face of the will that Mr. Oades intended to substantially dispose of his entire estate by specific bequests. This is manifest from clauses 14, 15, and 16. By clause. 15 he provided that, if there should be any surplus after the specific legacies, $150 should be given to Mrs. Collins, $200 to a sister-in-law, and $200 to a niece; and, should there be any deficiency to meet the last bequest in full, then the same should be made pro rata to the amount remaining. The term used in the sixteenth clause, “ any residue or remainder,” implies naturally that he did not anticipate that there would be much, if any, residue. . This conclusion is still more manifest from his own memorandum of his assets and liabilities. Under the construction of the appellant, the most singular and unnatural results would follow, and certain provisions of the will appear absurd. Is it conceivable that he intended to give his unborn child only $200 ? Or that he intended to bequeath to his two sisters only one share of the stock of the Peninsular Transit Company, worth only $50, for life, and upon their death to be divided among four ? He evidently intended to make some liberal provisions for the support of his wife and the child yet unborn. He was possessed of an estate worth about-$40,000. By this provision, as construed by the appellant, he bequeathed to his wife only $600, in trust for the maintenance of herself and child. It is impossible to believe that he intended any such inadequate provision. It is also manifest that he intended to make among his children and other objects of his bounty an equitable division of all his property, and reasonable pro [174] visions for the proper support and maintenance of his wife. The result of appellant’s contention would be that he intended to cut his own children off with a mere pittance, and leave the bulk of his entire estate to his wife, who had a child by a former marriage. We think it established beyond controversy that the testator, in making this will, treated those 30 shares as constituting his entire interest in the boat, and his entire stock in the corporation, and that the expression, “one share of stock in the steam barge John Oades,” was understood and intended by him to mean 20 shares of stock in’the corporation. It does not appear “from the four corners of the instrument” what is meant by the language used, but the extrinsic evidence clearly shows what the testator meant by it, and courts should so construe the will. This is not in conflict with the many cases cited by appellant’s counsel. The decree is affirmed, with costs to the complainants. Montgomery-, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.