78 A. 506 | R.I. | 1911
This is a bill in equity for the construction of the last will and testament of John W. Mathewson, late of the town of Smithfield, deceased. The bill is brought by Nettie G. Eddy, who claims to be interested in the property and estate of the testator, both as a legatee and as the sole heir of her mother, Antoinette (Mathewson) Eddy, a daughter of the testator. The two respondents are the only other persons interested in the provisions of the will, and are the two sons of the testator and, therefore, the uncles of the complainant. The three parties are all the heirs of the testator and his wife. The respondents have filed an answer, issues have been joined, the testimony of witnesses has been taken, and the cause, being ready for final decree, has been certified to this court in accordance with section 35 of chapter 289 of the General Laws of 1909.
It appears that John W. Mathewson died June 12, 1901, leaving a last will which was probated by the Probate Court of Smithfield, and a copy thereof is annexed to the bill of complaint. The will is dated February 15, 1884. The provision which the complainant seeks to have construed is the third paragraph of the will, namely: "Thirdly. After the decease or marriage of my said wife, I give, devise and bequeath all said estate both real and personal to her children to be and remain to them their heirs and assigns forever. Excepting, however from the provisions of this clause, the heirs of my daughter Nettie G. Eddy, deceased."
By the first clause of his will the testator made the following bequest: "I give and bequeath to my grandchild Nettie G. Eddy daughter of John L. Eddy the sum of twenty-five dollars." It is to be noted therefrom that he omits to give the name of his daughter, but does give in full that which is conceded *55 to be the correct name of his granddaughter, the daughter of his daughter who married John L. Eddy, and in fact the only daughter named Eddy. It appears that his other daughters died in infancy, unmarried and intestate. It may be further noted that in the third paragraph of his will no bequest or legacy is given to the heirs of his daughter, but that the plain intent thereof is to exclude them from any participation in the residue of the estate therein disposed of. If this clause had been written: "Excepting, however, from the provisions of this clause Nettie G. Eddy, the heir of my daughter, deceased," no question could have arisen as to the intent of the testator. But to our minds it is perfectly plain that he meant to accomplish that result. He did have a deceased daughter who had been the wife of John L. Eddy; the only heir of that daughter at the time of the execution of the will was Nettie G. Eddy, the complainant. The deceased daughter was named Antoinette, the diminutive of which is "Net, Netty." Webster's International Dict.
The object to be accomplished in the construction of a will is to ascertain the intent of the testator, in order that the same may be carried into effect according to law. The evident intent of the testator, as expressed in the third clause of his will, is to devise and bequeath the residue of his estate to the children of his wife living at the time of her death; but out of abundant caution he added the unnecessary clause to the effect that the heirs of his deceased daughter should not participate therein. His plain intent will be defeated by a construction which will include the complainant. Nor is there anything in the law which requires it. The word "children," when used in a will, is to be understood in its simple and primary signification, when it can be so understood, and it can not be held to include grandchildren unless it is necessary to hold so in order to give effect to the words of the will or to the evident intent of the testator. Tillinghast v. D'Wolf,
A form of decree in accordance with this opinion may be presented for allowance.
