26 Mo. 590 | Mo. | 1858
delivered the opinion of the court.
It is extremely difficult to give a satisfactory interpretation of the will of McHose. This difficulty does not proceed from the use of ambiguous terms, but from the very peculiar style in which the testator chose to express his ideas, and the indistinctness of the ideas themselves. In some cases it is plain that he does not mean what lie says, and his intentions, as indicated by his words, must be totally disregarded in order to effectuate another intention more prominent in his mind. All that we can do is to give effect to the main and leading purposes of the testator, not pretending that the whole will can be reconciled throughout, and all its details be executed.
The interest which is given by this will to the widow and children of the testator is, upon the whole, clear enough, and we think it is precisely what the law would have given them, neither more and no less. We do not adopt the interpretation which the counsel for the widow has insisted on, that by the will the widow is owner of the entire estate, with power to dispose of it at her pleasure, and subject to a division with her children of what remains at her second marriage or upon her youngest child’s attaining majority. Such a construction we regard as totally at variance with a leading and prominent object of the testator manifested throughout the will. When he speaks of the share of his children, he speaks of it as “ their rights, title and interest — as something fixed and determinate, not subject to the will of any one else, nor liable to be defeated by contingencies. It is true that some expressions in the will have to be disregarded in giving this construction to it. He speaks of the division, to which he refers upon the happening of certain events, as confined to his children “then living;” but he evidently re-
In construing this will we have not thought it important that very great stress should be laid upon any particular expression or detached clause. In some of them it will be seen that the testator has a very confused idea, or none at all, or means the very reverse of what he says. He speaks of his wife marrying “ of her own free will,” as though he contemplated the contingency of her being compelled to marry. After beginning with an apparently absolute devise of his entire estate to his wife, he proceeds to “ reserve to her the right of disposal in the manner following,” and then the testator’s mind appears to wander to another subject.
Notwithstanding the apparent absurdities and contradictions and obscurities about this will, we feel no doubt about the main results. The principal object in view is to provide for his wife and children, and for this purpose he fixes their relative interests in all contingencies at just what the law fixes it. Up to the period of a second marriage, if such an event should occur, and up to the period of the arrival to full age of his youngest child, he gives his wife, in addition to her fixed share, the use and control over the whole estate, with power to manage it, as he himself if living would, for the maintenance of herself and children, and for their education and advancement. So far as the interest of the children is concerned, the wife is but a trustee, and is only authorized to use the fund entrusted to her care for such purposes as fall within the object in view by the testator. That it would be in accordance with the spirit and meaning of the trust to advance to any of the children, upon marriage or upon ma
The question in this case is whether the widow is compelled to pay over to the oldest child, on arriving of age, the share of the estate to which, beyond doubt, she is entitled ultimately. That such a payment, by way of advancement, would be in the power of the mother, and would be entirely in accordance with the directions of the will, and in conformity to the trust confided to her, we have already declared ; but we have been very much embarrassed to determine whether the rights to this share is a positive one, under the will, and to be enforced without regard to circumstances. The question is not now whether a court of chancery would see to a reasonable performance of the trust confided to Mrs. McHoso by the will of her husband, but whether the will gives an absolute right to each child, on attaining majority, to the possession of the property secured to that child by the will. Either construction is entirely consistent with the provision which gives the widow the control and use of the property until the youngest child attains majority. By requiring the widow to advance each child’s portion upon attaining majority, she would still retain the use of her own portion and all the portions of the children not advanced, and the estate would only be diminished in proportion as the expenses of the family would be by the separation of each child as he or she became of age. This construction is quite consistent with some of the language employed by the testator, but is difficult to be reconciled with other portions. He declared that if his wife remained single during the minority of his children “ then she shall at their maturity” give the children their shares. The word “ then” may be understood, not as indicating the point of time when the payment was to be made, for that is fixed “ at their maturity,” but as simply equivalent to “ in that event.” The words “ at their maturity” very strongly favor the conclusion contended for by the
The other judges concurring, the judgment is affirmed.