36 A. 370 | N.H. | 1883
Lead Opinion
The end to be attained in interpreting a will is to effectuate the testator's intention as indicated by the weight of competent evidence, which is not required to come from any given source, or to be of any given weight, if it is relevant to the issue. "The whole will must be taken together, and such construction be put upon it as will carry into effect the purposes the testator had in view" (Claggett v. Hardy,
So far as the intention of the present testator is concerned, it is plain that in the making of his will he had two leading objects in mind, — first, to reward his wife for her care of him during his sickness; and, second, to place the children's portion of his property in the hands of a trustee. With these objects in view, and taking into account the nature and situation of his property, his relation to those he intended to benefit, and all the material surrounding circumstances (Goodhue v. Clark,
The only manifestation of such an intention on the part of this testator is found in the second clause of his will, wherein he gives the remainder of his estate, after the payment of his just debts and funeral expenses, to his children. But we do not regard this as of controlling importance, and especially under the circumstances of the case. The residuary bequest was apparently divided into two sections simply because the testator desired the share of the children to be held in trust; and therefore the significance of the words "after the payment of my just debts," etc., may well be held to be no greater from their position in the bequest to the children, than it would have been if they had been contained in *71
the bequest to the wife. Drew v. Drew,
The position and wording of the provision under consideration are therefore properly to be regarded only as evidentiary facts upon the question whether the testator intended to cast his debts upon his children; and upon this question no one kind of evidence is conclusive. Giving to these facts the weight to which they are justly entitled, nevertheless, in view of the testator's purpose, gathered from the will as a whole, in connection with the amount of his property, his large indebtedness, the relation to him of the objects of his bounty, the great inequality which would otherwise result, and the many inherent probabilities of the case, we are constrained to hold that the provision does not have the effect to *72
exempt the residuary bequest to the wife from the proportionate charges and expenses to which it would otherwise be liable. And this construction not only effectuates the testator's purpose and relieves against inequality and hardship, but it is also consistent with his language; for "estate," when used to signify property which a person leaves to be divided at his death, includes indebtedness as well as assets, and the ordinary meaning of "residue" as used in wills is, that portion of an estate which is left after the payment of charges, debts, and particular bequests. Phelps v. Robbins,
After the payment of the funeral charges, debts, expenses of administration, and the special legacy to the widow, the remainder of the estate is to be equally distributed to the three legatees.
Case discharged.
ALLEN, J., did not sit: DOE, C. J., and STANLEY, SMITH, and CLARK, JJ., concurred.
Dissenting Opinion
The interpretation of a will is the ascertainment of the testator's expressed intention. The question is not what he meant, but what is the meaning of his words. His unexpressed intention, however shown, is immaterial. A contrary doctrine would repeal the statute requiring wills to be in writing.
Many so-called rules of construction are properly rules of law, as, for example, the rule in Shelley's case (2 Jar. Wills 241; Fear. Rem. 188; Crockett v. Robinson,
Rules of interpretation do not control, but are subservient to the intention. They are rejected as inapplicable wherever they "would defeat instead of promoting the object for which" they "are framed." Blundell v. Gladstone, 1 Ph. Ch. 279, 286. They always contain "the saving clause `unless a contrary intention appear by the will.'" Hawk. Wills, Preface vii. From the earliest to the latest judicial decision on the subject it has uniformly been held that to the testator's expressed intention all rules for finding it must bend. Plow. 161, 162, 413; 3 Co. 20 b; 8 Co. 95 b; Hodgson v. Ambrose, 1 Doug. 337, 341; Ralph v. Carrick, 11 Ch. Div. 873, 886; Megson v. Hindle, 15 Ch. Div. 198, 202; Kennon v. M'Roberts, 1 Wn. Va. 96, 101, 102; Roy v. Garnett, 2 Wn. Va. 9, 31. Many of them are merely the conclusion reached by reason and common sense in the cases to which they apply (1 Pow. Cont. 370), as, for example, the rules, that, if possible, effect is to be given to every word; that words having as they stand a sensible meaning consistent with the rest of the will cannot be rejected or transposed; and that they must be given their natural and ordinary significance unless it appears from the context or other evidence that they are used in a different sense. Had they never been formulated, their precepts would none the less be observed.
Many questions are questions of law in one aspect, and of fact in another. Sedg. Stat. Law 193; State v. Hayes,
In ascertaining a testator's intention, nothing can be considered except the words of his will, and legitimate evidence tending to show what he understood them to mean. His intention, found upon competent evidence, is necessarily his expressed intention. Hence the proposition, that in the interpretation of a will the question of intention is determined as a question of fact by the natural weight of competent evidence and not by artificial rules of interpretation (Brown v. Bartlett,
The natural desire of the interpreter of a will to effectuate a just and rational disposition of the property rather than one that *75
is apparently unjust and irrational, is liable to lead him to overlook the sense of the written words, and to mistake for the expressed intention what he conceives must have been the testator's intention in fact. If the language used is ambiguous, the fact that one construction leads to reasonable and another to unreasonable results is evidence, and may be decisive that the former construction truly expresses the intention. But if the language is free from ambiguity, the unequivocal meaning of the words as they stand must be given effect, however unreasonable or absurd the result may seem to be. If courts could look into the heart and mind of the testator, see with his eyes, feel as he felt, and think as he thought, provisions that appear to them unnatural and irrational would often present an altogether different aspect. Upon no subject do men differ more widely than in the disposition of their estates at their death. Many whose testamentary capacity cannot be questioned make wills that seem to be unnatural and unjust to one or more members of their families. But no one can put himself in the testator's place. No one can know the motives that actuated him; his feelings towards his wife, children, and other kindred; his views of their necessities and deservings, — or any of the multitude of considerations that might justly move him in the disposition of his estate. Any conjecture concerning them, however plausible or probable it may seem, and any finding of the intention founded thereon, or not founded exclusively upon the words of his will and evidence tending to show what he understood them to mean, are more likely to be wrong than right. Brewster v. Edgerly,
Argument drawn from the general scheme or purpose of a will, says Lord Ch. Selborne in Giles v. Melsom, L. R. 6 H. L. 24, 31, is "a perilous and hazardous argument in most cases where it is used. I do not say that there are not cases in which it may be properly used, but certainly it is an argument which seeks to escape from the necessity of grappling with the meaning of particular words upon grammatical principles, and endeavors to get into a region of speculation as to the probable intent of the testator." Here there is no room for this argument. The only general or leading purpose of the testator disclosed by the will is, to give a part of his property directly to his wife and a part to a trustee for his children. This general intent affords no aid in determining the question whether the debts are chargeable partly on the devise to the wife, or wholly on that to the children. It is equally consistent with either view.
The expression "the residue and remainder of all my estate" in the first clause cannot be construed to mean exactly the same as "the remainder of all my estate after payment of all my just debts and funeral expenses" in the second clause. If the testator intended his bounty to his wife to bear a portion of the burden of his debts, he would have inserted after "estate" in the first clause *76 the words "after payment of all my just debts and funeral expenses." These words in the place where they are found are entirely without meaning if they do not charge the debts upon the devise to the children. The will cannot be construed to mean precisely the same as if these words were omitted. Reason and common sense require the application of the wholesome doctrine of the ancient rule, that effect, if possible, is to be given to every word, and would require it if no such rule existed.
In order to give to the will the effect claimed by the children, the words "after the payment of all my just debts and funeral expenses" must be either stricken out, or transposed from the second to the first clause. The court can do neither. The will is intelligible and sensible as it stands. Every word has a plain, rational, unambiguous meaning, consistent with the general tenor of the will and with all the circumstances disclosed. The testator could not have selected more apt and explicit words to express and give effect to his intention to charge his debts wholly upon the devise to his children. To reject or transpose words which as they stand have a rational meaning consistent with all the words of the will, is not expounding the will, but making a new one. Hall v. Hall,
The will carries internal evidence that the writer of it was acquainted with the law and with the rules of English grammar. He did not insert after "estate" in the first clause the words "after the payment of said legacy," because he knew they were grammatically superfluous. He did not insert in that clause the words "after the payment of all my just debts and funeral expenses," because he was instructed that the debts and funeral expenses were to be a charge on the devise to the children. It is incredible that for any other reason he omitted them in the first clause and inserted them in the second. He left no room for the suggestion of probabilities or for presumptions. Doubting, apparently, what meaning might be attributed to "estate," standing alone, he took care to show by qualifying words clearly and unmistakably the sense that must be given to it here.
Various extrinsic facts, as that the children are of mature age, that the wife is a second wife and not their mother, the value of the estate and amount of the debts, have been urged in argument. They are entitled to no weight. They are equally consistent with either construction of the will. It was the testator's right to *77 dispose of his property as he thought best. He might have given it all to his wife. It was for him to decide what justice to her and to his children required of him. The measure of his regard for his wife and for his children, his views of their necessities and deserts, and his motives for placing his bounty to his children not in their control but in the hands of a trustee, to be doled out to them as in his judgment their needs may require, cannot be known except as they are shown by his will. Conjecture or speculation regarding them is unprofitable and dangerous. It is "better to construe a will as it is, and to assume that it is as it was intended to be." Doe v. Taylor, 10 Q. B. 718, 723.
