46 Conn. 236 | Conn. | 1878
This case turns upon the construction of the following clause of Henry Migeon’s will:
“All debts and claims evidenced by notes, bonds or mortgages in my favor against any of my children, or any of my sons-in-law, husbands of any of my daughters, I forever release and discharge, and they are from and after my decease to be taken and deemed to be null and void and shall be surrendered to the debtors.”
At the time of his death he held a note against Church, Heminway & Co., a joint stock corporation, for five thousand
At the time of the execution of the will and at that of the testator’s death there was one note against a son-in-law of $1,000, to which the terms of the will were applicable. There were also, when the will was executed, other notes answering the description in the will, but they were not found by the executor.
Achille E. Migeon claimed that the Church, Heminway- & Co. note should be surrendered to him under the above clause of the will. The Superior Court held otherwise, and he brings the case before this court by a motion in error.
Before proceeding to consider the question of construction we will briefly notice the questions of evidence.
1. The evidence offered by the respondents other than Achille, and objected to by him, to prove that other notes such as were described in the will had existed but were not found by the executor, was admissible for the purpose of showing the relation which the testator had sustained to his children and sons-in-law. That relation might continue or a similar relation might exist at the time of his death. A knowledge of these facts enables us to see more clearly what wras in the mind of the testator at the time the will was drawn.
2. Evidence that certain business firms, of which his son and sons-in-law or some of them were members, were indebted to him, was not important. The view we have taken of the main question shows that the facts proved thereby could not possibly affect the construction of the will. Nevertheless we are inclined to think that it was properly received as tending to show a part of the history of the case.
3. Evidence offered by Achille that the testator in speaking of the note for five thousand dollars, both before and after the execution of the will, spoke of it as Acliille’s note, and
We come now to the question of construction. The court below construed the clause of the will under consideration as not applying to the Church, Heminway & Co. note. We cannot say that that construction was erroneous. It is quite possible that the testator intended that it should apply to this note. But the language used, giving to it its ordinary meaning, will hardly bear that construction. Taking it in connection with the whole will and the attending circumstances we do not think that such intention is sufficiently clear to justify us in .departing from the ordinary meaning of the words of the will. The words are, “ all debts and claims evidenced by notes, bonds or mortgages against any of my children,” &o. Had this note been signed by Achille it would have been exactly described by the will; the note itself would have evidenced a debt against him in favor of the testator. The note in controversy-is not of that description. The note itself evidences a debt against Church, Heminway & Go. Extrinsic evidence is necessary to show that it has become a debt against Achille F. Migeon. The debt is not evidenced by the note and mortgage alone. To establish it fully it is necessary to introduce the deed from Church, Heminway & Co. to Achille, and also parol evidence. Had the testator intended that such a debt should be surrendered and discharged he would probably have used language evincing such intention. Instead of doing so he has limited the operation of this clause in his will to debts proved in a particular manner. Moreover the grand scheme, so to speak, or general intention of the whole will, is to divide the bulk of his property equally among his children. .To this there are exceptions. He gives the
There is no error.
In this opinion the other judges concurred.