29 Pa. 234 | Pa. | 1857
The opinion of the court was delivered,
Where there are two clauses in a will which are so inconsistent with each other that it is impossible to give effect to both, the first must give way to the last, because the latest manifestation of the will of the testator is to control. But in the construction of a written instrument, it is the duty of the court to endeavour to give effect to every part of it. It is only when this is impossible that the rule first mentioned has place. With this principle in view, Ave see no difficulty in the case before us. The legacy of one dollar is payable immediately and absolutely. The residuary legacy does not take effect in possession until after the death of the tenant for life. The enjoyment of the first by the legatee, depended upon his being alive at the death of the testator. The enjoyment of the other by the legatee rests on the contingency of his surviving the tenant for life. They are not so inconsistent with each other as to require either to give Avay. Both may well take effect. It may be possible that the legacy of one dollar to Peter Stickle was given under the erroneous notion that it Avould cut him out of all further share in the estate. But the bequest can have no such effect; Avhereas here, the testator, in a subsequent clause, gives a residuary legacy to a class Avhich clearly includes the first legatee. He is one of the “ nearest heirs” of the testator, and by that description he must come in equally Avith the other residuary legatees named in the auditor’s report. If an heir is not to be disinherited except by express direction, or necessary implication, he surely cannot be deprived of his legacy, expressly given, by an implication not necessarily arising from any part of the Avill, and which, at most, is but a bare suspicion. The testator may have intended to cut him off Avith a dollar, but he has expressed a contrary intention.
It is decreed that the money be divided equally amongst Peter Stickle and the other legatees named in the auditor’s report, and that the appellees pay the costs.