Rodgers v. Rodgers
7 Watts 15
Pa.
1838
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The opinion of the Court was delivered by

Huston, J.

Every lawyer and judge have felt the difficulty of coming to a certain conclusion as to the construction of wills. Even where the will was drawn by a professional man, the books show numerous cases in which there has been a contest, not only as to the quantity of estate, but also as to the quantity of property which passes to the several devisees, or legatees. Where the question is,. whether the property is given for life, or in tail, or in fee, it is a question of law; but the question of law arising on the effect of *18certain words used in a will, and the same words in- a deed, has been held to have been properly decided differently. The intention is more attended to in the construction of a will; and the true rule seems to be, that intention, if it can be certainly ascertained,; is to govern, unless where that intention is such- as that the principles or policy of the law forbid courts to give effect to it; as where .there is an intention to give a fee after a fee, or to create a perpetuity.

Still a difficulty often occurs as to what is the intention'? It arises from inaccuracy in expression; misconception of the person who writes the- will; from some confusion of ideas in the testator; and very often from not stating that a subsequent general disposition of all the property is not to interfere with a previous specific appropriation of part of it.

Thus, in the third clause, in which the testator directs his personal property to be sold, he excepts what had been given to his widow and daughter, Rachel: but after, in the fourth clause, directing his real estate to be sold, in the fifth, he says, “It is my .will that, after all my property, real and personal, shall be sold, and debts paid, the remainder shall be equally divided among my children, (except Richard who has released,”) &c. &c. Nowhere is it manifest, that the words all my property, real and personal, do not convey the idea or intention of the testator, who evidently meant here the same exception as was expressed in the third clause, viz.: all, except what had been given to his wife and daughter Rachel.

So, too, it is conceded that as to the real estate, he contemplated that his widow was to have her third of that, or, as it was to be sold, her third of the ’interest arising from the price of it. On the one side it is said, every body knows a widow has dower out of lands, but every body does not know that a widow, where there is no will, has one-third of the personal estate of a deceased husband. It would be a very unsafe basis, that a court should decide on a supposition of greater or less legal knowledge in unlearned testators: perhaps the truth is the converse of what is made the ground of the above argument ; though there may not be a general knowledge that, by a will, she can be deprived of any share of the personal estate.

But, on the words of this will, we have seen that an exception must be made to the general gift of all his property, real and personal, in the fifth clause. Why1? Because he had given part of the personal expressly in the first and second clauses, and expressly excepted it in the third (though the exception is omitted in the fifth); and because every body must see there was no intention to revoke these prior gifts of particular specified personal property to his widow, and Rachel; and the intention to carry the exception in the third clause into the fifth, is so apparent as not to be mistaken.

The first clause is; “I give and bequeath to my beloved wife, Jane Rodgers, all the furniture and other articles which she brought with her, that are now in my possession, together with her interest out of my estate, so long as she remains my widow.” It will not do to stop *19at the word “possession.” “ Together with her interest in my estate,” is not surplusage; it is an addition to what went before, and it is as expressly given and bequeathed to her, as the personal property she brought when married. It is said not to be so expressly designated. Her interest in my estate means something: it means, either the interest in my estate which she would have if I died intestate; or it means, such interest in my estate as the law will give her, beyond my control. Can we adopt the latter construction? Can we suppose in the first part of the sentence the testator gave her more than the law gave her, in case of his intestacy, and in the last clause meant to say, I do not give her any thing of which I can deprive her? We think’not. The devise of certain specific property to Rachel is in addition to her share under the fifth clause. We believe that the intention of the testator, and the effect of this will are, that to his widow and his daughter Rachel he gave what they would not have had, if he had died intestate; and that this was to be in addition to their share in case of intestacy, and his intention was, that, with this exception, his estate should go as if he had made no will. The statement that some children should be charged with the advancement made to them is consistent with this. Richard’s release to his father would have been as valid, in case of his intestacy, as it is under this will.

There remains, however, another matter. Although we have affixed a meaning to the words, “together with her interest in my estate,” “so long as she remains my widow,” are also added; we add, that the property she gets is limited as to its duration in her possession by the latter words. His intention was, that she should have (in addition to what she brought to him) the same quantity of his estate which she would have had if he had died intestate; but he limits the continuance of her interest in this to her widowhood. As to the one-third of his personal estate then, she does not take it absolutely, but, as it is turned into money, she will have a right to the interest of one-third of the personal estate which remains after payment of debts, so long as she continues his widow; or a right to the principal, on giving the executor satisfactory security that the principal shall be restored on her death or marriage. It was truly considered that this nuncupative will was void, as to the real estate; and it descends and goes to the widow as if no will had been made: but we cannot suppose that the decedent knew this; and we have construed the will by his apparent intention when it was made. We have nothing else by which to form a decision. Were we to go into conjecture as to what he would have said, if he had known this, it might be making a disposition of which he never dreamed.

Judgment reversed, and venire de novo awarded.