1 Rob. 435 | Va. | 1842
This is an awkward and obscure devise, but it has a key to it, which I think will unlock the testator’s meaning. That key is to be found in the condition of this daughter, and the provision which a father would be naturally disposed to make for a child in her circumstances. She was the wife of an improvident husband, and the mother of a large, and, it may have been, increasing family of children; some of them of tender years ; and of two who had attained maturity, one was a married daughter, and the other a son who had set out in life and was managing for himself. The testator, in making a final distribution of his property amongst his children, would of course be desirous of placing the share intended for this unfortunate daughter, beyond the control of her thriftless husband, and the grasp of his creditors ; and to secure the benefits of the property to her and those who were the nearest objects of her solicitude, and who by that reason chiefly had attracted his own affectionate regard. The anxious father’s wish would therefore be to give the daughter the control, discretion and authority, which should pertain to the only efficient head of the family; so restricted merely as to prevent her dominion over the subject from being injuriously perverted. Such a purpose would require a scheme giving to her a home and the perception of the little income of her humble estate, for the common maintenance of herself and family, with the chance of appropriating any surplus that industry and frugality might yield, towards the advancement of such of her offspring as had left, or might leave, the house
With this view of the testator’s probable motives, arising out of the triple relation of the prominent devisee of daughter, wife and mother, and in connexion with the scantiness of the provision contemplated, we shall find that the devise is reasonable and judicious in the whole, with a perfect unison and harmony in all its parts : whereas a different consideration of the subject must result inevitably in a harsh and grating discord. Let us look for a moment into the particulars of the clause in question.
In the first place, the testator shews that this daughter is the primary object of his contemplated bounty, by giving the property to her and her heirs, w'ith the designation, it is true, of one of those heirs, (who, it would seem, was a favourite grandson,) lest it might be supposed that he was excluded from the inheritance, by a separate devise of a tract of land to him in a preceding part of the will. He then proceeds to exclude all marital rights and control of the husband, by declaring that he shall have nothing to do with the management of the property, because incapable of conducting his own affairs. He next interposes his executor as trustee, but without investing him with the title, inasmuch as he was merely to be the protector of the separate estate, without actual possession of the property, or pernancy of the profits. Then follows a declaration that the profit is to be to the daughter and her children, evidencing that she is to have the income and her heirs a present interest in the subject, but qualified immedi
On the other hand, why should we imply, for it is not expressed in the will, an immediate devise of the little estate, real and personal (it embracing a slave by a subsequent clause) to the mother and her children, adults and infants, married and unmarried, born and unborn, as joint tenants or tenants in common, with the distribution amongst them individually and equally of what was a bare modicum of income for common sustenance ? Look at the consequences, and see how it defeats the whole paternal scheme for shelter and food and raiment, and domestic happiness. What becomes of the mater-* nal control and authority; of a discretion adapted to the wants and inclinations of the children ; of a frugal but comfortable household management and thrift; of the domestic hearth itself? And how is the trustee to
A construction fraught with such evils, defeating the main object which the testator had in view, and mocking the wretchedness which he sought to relieve, can gain no countenance except from a merely technical view of the question, derived from the rigidness of common law conveyances, and inapplicable to the last wills and testaments of ignorant testators, whose intention, the great desideratum, is to be attained by moulding with a plastic hand their rude and imperfect language into a conformity with their natural and common sense thought. The intention, fairly and candidly sought and sufficiently ascertained, overrules every thing else, and becomes the law of the will, unless in contravention of the law of the land. “ If,” said lord Mansfield in Chapman v. Brown, 3 Burr. 1634. “ words are supplied by construction, it must always be in support of the manifest intent. The blunder of expression is here favourable to the real meaning, and therefore cannot be supplied by construction, the constant object of which is to attain the intent. For this purpose, words of limitation shall operate as words of purchase; implications shall supply verbal omissions; the letter shall give way; every inaccuracy of grammar, every impropriety of terms shall be corrected by the general meaning, if that be manifest.”
This view of the case is, 1 think, strongly sustained by the decision of the court, and the reasoning of judge Carr, adopted by the majority of the judges, in the case of Wallace & wife v. Dold's ex'ors & al. 3 Leigh 258.
I think the decree ought to be reversed, and the bill dismissed with costs.
In the construction of this will, the situation of the parties must be looked to for the purpose of ascertaining the probable intent of the testator. He had three children, for whom it was his intention to provide, and who are the principal objects of his bounty. To his two sons he gives portions simply and directly. But his daughter was peculiarly situated. From the face of the will it appears that she was married to an improvident husband. He states that his son in law was not capable of managing his own affairs, and therefore he excludes him from managing any part of his estate. This daughter had eight children, two of whom had left the paternal roof; and for these, the testator makes a special provision. The remaining children
The provision preventing a sale is relied on as shewing an intent to confer a present interest in the profits.
It is clear from that clause, that the testator supposed he had invested them with some interest; and therefore the daughter did not take a fee. But it does not prove that he intended to give a present interest in
I think, therefore, that the children took no present interest in the profits during the lifetime of their mother. If they took any such interest, I know of no other mode of securing it to them, than by holding that each took equally and had the absolute right to his portion. The
I think, therefore, that the decree should be reversed, and the bill dismissed.
Had I been one of the court that decided the case of Wallace & wife v. Dold’s ex'ors & al. I should have concurred in the opinion of president Tucker. The principles of that opinion I still approve, and I think the cases cited by that judge fully sustained the main position of his opinion, that, on the proper construction of the will, the child took a present interest, not liable to be divested at the discretion or will of the mother. In the case in judgment, I think the argument of that opinion, and the cases referred to in it, conclude with equal if not greater cogency in support of a construction of the will, whereby the children take a present interest in the profits, which, however small the property, is not destructible at the will or discretion of the mother, and for which, if withheld, the injured child is entitled to a remedy in equity.
approving the decision in Wallace & wife v. Dold's ex’ors & al. and being of opinion that it ruled the present case, held that the decree ought to be reversed and the bill dismissed.
Decree reversed and bill dismissed.