Flemming v. Griem

Winslow, C. J. A number of detail errors are alleged, all of which have been examined and found untenable. It is not considered that any good purpose would be subserved by stating them. The only question of fact or of law in the case worthy of discussion is the question as to the meaning of that [611] clause of the will which provides that in ease of the death of either of the legatees her legacy “shall be payable to the legal heir or heirs of such legatee.” Does this include legatees who had died prior to the making of the will ? The circuit court answered this question in the affirmative under the peculiar circumstances of this case, i. e. the circumstances that the legatees named lived in Germany, had not been visited by the testator in more than twenty years, and apparently had never been in correspondence with the testator. The trial court thought that these facts made it clear that the clause so industriously inserted in the will and applicable only to this class of legatees was meant to cover death either before or after the making and thus provide for all contingencies. We agree with this construction. The intent of the testator to be gathered from the will itself in the light of the surrounding circumstances is, of course, controlling. This principle needs no citation of authorities in its support. By the Court. — Judgment affirmed.