60 Vt. 712 | Vt. | 1888
The opinion of the court was delivered by
This bill is brought to obtain a judicial construction of the will of James McConnell.
‘ ‘ And if my granddaughter, Mary Helen Eddy, shall survive her mother, Laura C. Eddy, and shall marry and have lawful issue living, then I give and bequeath the residue of my estate to my said granddaughter, Mary Helen Eddy, to be for the proper use and benefit of herself and heirs forever. But if she shall not marry, or marrying shall have no issue living, then I give and bequeath to her the interest only of what may remain of my estate after the death of her mother, Laura C. Eddy, to be paid to her annually by my executors or their survivors for and during her natural life. But if my granddaughter, Mary Helen Eddy, shall die without lawful issue living, then I give and bequeath whatever may remain of my estate in equal portions to my relations, George W. Chaplin and David A. Richardson, to be by them distributed to such heirs of each, at such times and in such manner as they shall deem fit and proper.”
The conceded facts are that Mary Helen Eddy has survived her mother, Laura C. Eddy, — has lawfully married one John C. Doty, and has now living a daughter, Laura Miriam Doty, the fruit of said marriage.
The precise conditions then named in the first paragraph of the above clause in McConnell’s will exist, which by said clause, gave the residuum of the estate to Mary Helen “to be for the proper use and benefit of herself and heirs forever.” If this paragraph stood alone no doubt could arise as to its meaning. If Mary Helen took the residuum for the proper use and benefit of herself and heirs, she took an absolute estate. Stowell v. Hastings, 59 Vt. 494. The language has the same meaning and effect as a grant in a deed to one and his heirs forever.
It is an elementary rule of construction that an absolute gift in a will, will not be defeated by a subsequent repugnant clause. If the subsequent clause is plainly a qualification or condition, which evidently was intended by the testator to be read as part of the preceding clause, the rule is different. It makes little difference in the construction whether the granting clause itself is in form conditional; or the condition is annexed
Tbe question then is whether the later paragraphs of the clause in question were added to the first paragraph by way of limitation or condition, or whether each and all may stand consistently with each other.
As already said, the testator has imposed three conditions upon which, under the first paragraph, an absolute estate will pass to Mary Helen, and these conditions are all answered.
When the testator was particular to specify the conditions upon which his granddaughter should have the estate absolutely, it seems rather strange that he should omit to incorporate in this paragraph further conditions affecting the devise, if he intended to further limit it.
But passing this point, we think the two subsequent paragraphs were not intended to have effect at all, if the several events named in the first happened.
The second paragraph is antithetical merely. “ If she shall not marry, or marrying have no issue living,” then inasmuch as the conditions named in the first paragraph fail, the gift takes on a new character. So far the testator has used no repugnant language. He says if Mary Helen marries and has issue living, she and the issue take absolutely. If she does not marry, or, if she marries and has no living issue, she takes only a life estate. These paragraphs are not repugnant to each other; they merely provide for different contingencies that may arise. It is like the familiar illustration used in the books as a gift, — '“to A, if he survive me, if nottoB,” — where, it is said, that the words import an absolute gift to either A or B as the event may determine.
The doubt as to the testator’s meaning arises more directly upon the concluding paragraph, “But if my granddaughter, Mary Helen Eddy, shall die without lawful issue living, then I give, etc.,” to Chaplin and Richardson. We think this paragraph, like the second, was intended to provide for a failure of
Taking the whole clause into view, it is quite evident that the testator did not intend in the second or third paragraph to qualify the absolute character of his gift as expressed in the first unless the events named should happen.
We hold, therefore, that Mrs. Doty is entitled under the will to the residue of her grandfather’s estate in the hands of the orators, to her own use absolutely.
Pursuant to a stipulation of the parties, the costs of this cause are to be charged to the fund in the hands of the orators.
The decree is reversed and cause remanded to the Court of Chancery with mandate according to the foregoing views.
