114 N.Y. 512 | NY | 1889
This will furnishes an instance of some obscurity in the declaration of a very simple purpose of the testator. And from its provisions, aided in construction, so far as it legitimately may be, by circumstances disclosed, it must be *515
determined what his intention was in respect to the use or disposition to be made of the notes in question. When the language of a provision of a will is plain and free from ambiguity, effect must be given to its import. When it is equivocal, the intention of the testator in the use of the language employed by him, must be sought for by reference to all the provisions of the will, and to such circumstances as may properly be entitled to consideration. And in such case there is no inflexible rule of interpretation to govern the determination of that inquiry. While rules of construction may aid somewhat the way to a conclusion, they are not to be used to frustrate the intention of the testator, but when that is ascertained the language and mode of expression, if of doubtful import, may be subordinated to such intention. (Lytle v. Beveridge,
The testator could, if so disposed, by his will have converted this indebtedness of the defendant into an advancement. (Green v. Howell, 6 Watts S. 203.) In that view it might, with some plausibility, be urged that it was within the design of the testator to make by his will the entire amount of the notes as an advancement, and in the event that they should exceed the amount of the defendant's share in the estate, then *517 to be to that extent only considered a legacy. But this does not seem the fair or reasonable interpretation of the purpose of the testator. He appears to have treated the notes as his property at the time he made the will, and declares that they shall be considered his property. It is very likely that, in view of his then pecuniary situation, he had in mind the fact that the share of the defendant in the estate might at least equal the amount of the notes, and intended to be understood that, in such case, they should be wholly treated as the defendant's legacy, and, in that manner, satisfied; but in the event that his share in the estate should be insufficient to cover the amount of the notes, they should only in part go to him as a legacy. That view of the intention of the testator gives practical effect to all the provisions of the will, and renders it consistent with the circumstances, so far as they are indicated by its provisions or otherwise disclosed by the evidence. It does not appear that the testator held any debts or obligations in any form against any of his sons other than the defendant. The only purpose of discrimination between his children in respect to the distribution of his property among them, expressly declared by his will, was to give to each of his three sons $50 in excess of the shares to his daughters, and nothing other than that in any manner appears to indicate that he did not deem his children equally worthy of his testamentary bounty, and in like manner entitled to it.
These views lead to the conclusion that the notes constituted a part of the estate of the testator, and that he did not intend by his will to treat them as a gift or advancement to the defendant; but his design was that they should be considered a legacy to the defendant so far as his share in the estate would permit.
The order should be affirmed and judgment absolute directed for the plaintiff.
All concur, except BROWN, J., dissenting, and VANN, J., not voting.
Judgment accordingly. *518