Hayes v. Davenport

25 Vt. 109 | Vt. | 1853

The opinion of the court was delivered by

Redfield, Ch. J.

The only question in the present case is whether the will of the testator excludes the appellants from any participation in the residue of the estate, after paying the specific legacies. It is not perhaps easy to conjecture, nor is it necessary to know of any sufficient or probable reason for excluding these representatives of two of the testator’s deceased children, from all participation in the residue of the estate. Many wills are made upon mere caprice. They are not intended to proceed upon any principle of equality. And in other cases, where sufficient reasons exist for a departure from the rules of equality, it is not, apparent, upon the face- of the will, and is not required to be made thus apparent.

The very right to make a will, supposes it may be done in such terms, and for such reasons, as are satisfactory to the mind of the testator, and without stating such reasons. The only legitimate inquiry in such case is, perhaps, what is the intention of the testator, as gathered from the terms of the will, construed, as other contracts may properly be, with reference to the subject matter, and attending circumstances.

And in this view, it seems to us very difficult to say, that the testator, from the terms used, could have intended to have the appellants have any portion of his estate, above the sums specified, unless we can fairly conclude, that he intended to have and supposed'he had left a portion of his estate, not disposed of by will.

But the terms made use of in the codicil of 1843, show conclusively, that it must have been the purpose of the testator to direct the disposition of all his estate, in the will. This disposition of the residuary property is no where controlled in the subsequent codicils. And it does not seem to us sufficient to justify the court, in treating it as a mere nullity in the mind of the testator, because it does not alter the distribution of the property, from what the law would have made, or from the will. To the mind of the testator it would show the disposition, by will, of all his estate.

When the testator says, that the provision in the third codicil shall be “ in full of all, and for all other provisions by me made for them in any will, or codicil, by me made,” we must conclude, that he intends this to be all the provision which shall be made for them, out of his estate. This seems to be the natural and necessaxy construction of the will, notwithstanding the inclination, which the mind naturally feels, to let in the appellants to a share in the distribution of the residue of the estate. It is possible such might have been the purpose of the testator ; but we think there is nothing in the will, or the case, to render it legally probable that such was his purpose.

The judgment of the County Court is therefore affirmed, and must be certified, by the clerk, to the Probate Court.