8 Pa. 229 | Pa. | 1848
This residuary bequest is susceptible of opposite constructions; the one founded on a particular form of expression, and the other on an intent apparent from the frame of the will. The testator, having directed his personal property to be sold immediately, and his land to be sold at his widow’s death, and having given nearly equal legacies to his living children, as well as to the children of those who were dead, proceeds to say: “ the legacies hereinbefore (directed) to be divided to my children and grandchildren (are) to be paid out of the sale of the said property, real and personal; and the remainder, if any, after the said legacies are paid, (is) to be divided among my children who may be living at the time of such distribution; and in case any of them should be deceased, their heirs (are) to receive, in equal parts, such share as their parent would be entitled to receive, were they living.” As the words in the last clause are properly applicable to the children of those who should die in the interval, and not to the children of those already dead, a strict interpretation of them would exclude the latter. This is the interpretation of the defendant, and it certainly receives countenance from Gray v. Garman, 7 Jurist, 275, in which the bequest was in nearly the same words, but predicated of persons who stood in a very different relation to the testator; but it receives no countenance from Hough v. Hough, 4 Rawle, 363, in which the bequest was to the testator’s present surviving children, and the representatives of them that shall be then deceased — words too pointedly exclusive of the children of those dead at the making of the will, to leave room, for construction. Thus stands the case on the argument for the plaintiff, and on what was probably an accidental form of expression adopted by an unskilful and illiterate penman. But the choice or collocation of words set down by one who could neither write nor spell with tolerable accuracy, is certainly entitled to no great respect as special indices of Ms meaning. Instead of the random expression used by the testator, it is very probable he would have said on another trial to deliver his meaning: “to be divided among my children living at the time of such distribution, and the heirs of those dead;” in place of which, he fell upon a roundabout mode of expression, which,
Judgment of the Common Pleas reversed; and it is considered by the court here that the plaintiff recover of the defendant $163.82, with costs, pursuant to the agreement in the case stated.