Construction of Wills.

It is obvious that within the scope of the present work it is inexpedient to treat of this subject extensively; it is considered only necessary to advert to a few of the leading and generally recognized rules followed in the construction of wills, both here and in England.

The main purpose, in this direction, is to ascertain the true intention of the testator, from the language used in the instrument, and this intention shall prevail above every other construction which might be placed on the language. This is the cardinal rule of all construction, but it is to be taken with this limitation, that the intention will govern only so far as it is consistent with the rules of law. The general intent overrides all mere technical and grammatical rules of construction.

This intention is to be ascertained from the whole will taken together, from a full view of everything contained within “the four corners of the instrument,”[312] and not from the language of any particular provision when taken by itself; and, for the purpose of construction, a will and codicil may be considered together, and construed as different parts of the same instrument.[313] But where several parts are absolutely irreconcilable, the latter must prevail.[314]

The rule as to intention, governing in all cases, is somewhat liable to misconception, because it is susceptible of, and may be taken in, two senses.

For by intention, it may be inferred that we are to seek for some probable purpose as existing in the testator’s mind at the time; or may seek to extract that intention from the meaning of the language which he has used. It is in this latter sense alone in which construction is employed. The will must be in writing, and the only question is, what is the meaning of the words used in that writing? And to ascertain this, every part of it must be considered, with the help of those surrounding circumstances which are admissible in evidence to explain the words, and to put the court as nearly as possible in the situation of the writer.

This was well expressed in Cole v. Rawlinson,[315] by Lord Holt when he said: “The intent of a testator will not do, unless there be sufficient words in the will to manifest that intent; neither is the intent to be collected from the circumstances of his estate, and other matters collateral and foreign to the will, but from the words and tenor of the will itself.” The rule was well illustrated in the case of Doe v. Dring,[316] where a testator, intending, no doubt, to dispose of all his property for the benefit of his family, used these words: “All and singular my effects of what nature and kind soever.” Lord Ellenborough said, that if he were asked his private opinion as to what the testator really meant when he used these words, he would reply, that he must be supposed to have meant that which his duty prescribed to him, to convey all his property for the maintenance of his family; but as a judge, he was not at liberty to collect his meaning from matters dehors, but only from expressions used on the face of the will, and that the expression “effects” had always a meaning, in the absence of anything in the context, which necessarily excluded real estate. However, if the context shows that by the expression, “all my personal estates,” the testator meant to include real property, it will be so held by reason of the clear intention manifested on the face of the will.[317]

An introductory clause expressing a testator’s desire to dispose of all the property he should “leave behind him” may be referred to, to construe the will as passing all lands belonging to the testator at the time of his death.[318]

It is one of the most troublesome questions in law, as to how far parol evidence can be admitted to ascertain the intention of a testator. The principle was early established, that parol evidence should not be admitted to vary, contradict, or enlarge the terms of a will, and this is still rigidly adhered to. This was well established in what is known as Lord Cheney’s Case,[319] where it is said that “otherwise it were great inconvenience that not any may know by the written words of the will what construction to make, if it might be controlled by collateral averment, out of the will.”

Chancellor Kent, in Mann v. Mann,[320] examined this subject with much industry and learning, and declared the result to be: that from Cheney’s Case down to this day, it has been a well-settled rule that parol evidence cannot be admitted to supply or contradict, enlarge or vary the words of a will, nor to explain the intention of the testator, except in two specific cases: 1st. Where there is a latent ambiguity arising dehors the will, as to the person or subject meant to be described; and 2d. To rebut a resulting trust.

What is a latent ambiguity is thus described in the quaint but expressive language of Lord Bacon: “Latens is that which seemeth certain, and without ambiguity for anything that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity; as, if I grant my manor of S to J F and his heirs, here appeareth no ambiguity at all; but if the truth be that I have the manors both of North S and South S, this ambiguity is matter in fact, and, therefore, it shall be holpen by averment, whether of them was that the party intend should pass.”

A patent ambiguity is one that is apparent on the face of the will, and is only to be remedied, by construction of the language, if possible. As, for example, if the devise is to one of the sons of J S, who has several sons, such an uncertainty in the description of the devisee cannot be explained by parol proof.[321]

As a general rule, courts do not admit parol evidence in cases of patent ambiguity; but on this head there is a difference of decision in this country. We have no uniform rule throughout the United States, either by statute or construction, as to the extent to which parol testamentary evidence is admissible. In some States, the English rules will be followed in the main, which is to admit no extrinsic evidence except to explain a latent ambiguity. But in many of the States, undoubtedly, extrinsic evidence of the testator’s circumstances, as distinguished from his intention, will be admitted in aid of the construction of any expression left ambiguous by the context.[322] In New York, the courts adhere to the English rule, and admit no extrinsic evidence, except to explain a latent ambiguity.[323] In Maryland, the strict rules of construction prevail, and no parol evidence is admitted except as in England.[324] The same is the rule in Ohio.[325]

It seems to be a universally received doctrine in the American courts, that extrinsic evidence of the declarations of the testator, made at the time, before or after the execution of the will, cannot be received to show the intention of the testator by the use of particular words therein, or by its general scope; as, that by the use of the word “children” he meant to include step-children;[326] or that a bequest to the parent was intended for the children of such parent, who was known by the testator to have died; or that the term “children” was intended to include illegitimate children;[327] or in any sense to vary the express provisions of the will, or to show in what sense he used a well-settled term of law.[328] Nor are the declarations of the testator admissible to show the existence of a will at the time they were made.[329] But, in a case in Michigan, it was held, where, after the death of the testator, a will twenty-five years old was discovered in a barrel among waste papers, and either torn or worn into several pieces, which were scattered loose among the papers in the barrel, that the declarations of the testator, made after the date of the will, were admissible, not as separate and independent evidence of revocation, but as tending to explain whether the instrument was thus torn accidentally, or with intent to revoke.[330] The code of California has settled this question for that State; it excludes all declarations of the testator’s intention.[331]

To ascertain the intention of the testator from the language of the instrument, certain rules of construction have been established, which have obtained the acquiescence and authority of the courts. If technical words are used by the testator, he will be presumed to have employed them in their legal sense, unless the context contain a clear indication to the contrary.[332] Courts, therefore, have no right or power to say that the testator did not understand the meaning of the words he has used, or to put a construction upon them different from what has been long received, or what is affixed to them by the law.[333] There can be no place for construction, for the discovery of the testator’s intention, when he has used words of an unequivocal, definite sense in law, and, however it may frustrate any presumed worthy designs, the import of the terms as used must prevail.[334]

In Hicks v. Salitt,[335] the court said: “When a testator uses a word which has a well-known, ordinary acceptation, it must appear very certain that he has said, on the face of the will, that he uses it in another sense, before the ordinary sense can be interfered with.... In order to alter the meaning of a word, it must appear, not that the testator might have meant it in a different sense, but that he must have meant it in a different sense.”

The right of every testator to use words in a sense different from the technical legal sense, provided it is apparent, is well established and acknowledged. Thus, in deference to the context, the word “money” has been held to pass stock in the funds;[336] though its technical meaning, according to Coke, only implies gold and silver, or the lawful circulating medium of a country.[337]

This technical meaning of the word was applied in Mann v. Mann,[338] where a testator bequeathed “all the rest, residue, and remainder of the moneys belonging to his estate at the time of his decease,” which was held not to comprehend promissory notes, bonds and mortgages, and other securities, there being nothing in the will itself to show that the testator intended to use the word in that extended sense. And the words “nephews and nieces” have been held to include great-nephews and great-nieces, different from the import of these terms as settled in law;[339] and the word “family” has been held to include a husband.[340]

In the case of Hussey v. Berkeley,[341] Lord Nottingham, upon the question whether the testatrix intended to include great-grandchildren under the term grandchildren, considered the fact that she had, in another part of the will, called a great-grandchild her granddaughter, as conclusive evidence of her intention to include such great-granddaughter in the residuary clause of the will, under the general description of her grandchildren.

The court is bound to give effect to every word of a will without change or rejection, provided an effect can be given to it not inconsistent with the general intent of the whole will taken together.[342] Thus, if one devises land to A B in fee, and afterwards in the same will devises the same land to C D, for life, both parts of the will shall stand; and in the construction of the law, the devise to C D shall be first.[343] But when it is impossible to form one consistent whole, the separate parts being absolutely irreconcilable, the latter will prevail.[344] Thus, where the testator, by one clause of his will, bequeathed a slave to his son, remainder to his issue, remainder over; and by a subsequent clause bequeathed the same slave to his daughter, with like limitations, it was held that the clauses were inconsistent, and the last revoking the first, that the daughter was entitled to the legacy.[345]

If a testator’s intention cannot operate to its full extent, it shall take effect as far as possible.[346] And where a will contains different trusts, some of which are valid, and others void or unauthorized by law; or where there are distinct and independent provisions as to different portions of the testator’s property, or different estates or interests in the same portions of the property are created, some of which provisions, estates, or interests are valid, and others are invalid, the valid trusts, provisions, estates, or interests created by the will will be preserved, unless those which are valid and those which are invalid are so dependent upon each other that they cannot be separated without defeating the general intent of the testator.[347]

Words, in general, are to be taken in the ordinary and grammatical sense, unless a clear intention to use them in another can be collected.[348] Thus, in Young v. Robertson,[349] it is laid down: The primary duty of a court of construction, in the interpretation of wills, is to give to each word employed, if it can with propriety receive it, the natural ordinary meaning which it has in the vocabulary of ordinary life, and not to give words employed in that vocabulary an artificial, a secondary, and a technical meaning. Thus, a testator, in a clause of his will, provided that the share of the estate of any of his children dying without issue should be equally divided among the survivors of his children or grandchildren, and it was held that a step-daughter was not a surviving child of the testator, within the intent and meaning of this clause of the will, so as to entitle her to a portion of the shares of one of the testator’s daughters, who died without leaving issue, even though this step-daughter was acknowledged to be of the family, and treated there as a child.[350]

And the word “children” does not, ordinarily and properly speaking, comprehend grandchildren or issue generally; these being included in that term is only permitted in two cases, viz., from necessity which occurs where the will would remain inoperative unless the sense of the word “children” were extended beyond its natural import, and where the testator has clearly shown by other words that he did not intend to use the term “children” in its proper, actual meaning, but in a more extensive sense. In Osgood v. Lovering,[351] the word was held to include grandchildren, it being apparent from the context, that this was the meaning given by the testator.[352]

This term imports legitimate children only;[353] but if it is notorious that a testator had no such legitimate children, but had others who went by reputation, and were acknowledged as his children, these can take under this term.[354]

In Lord Woodhouslee v. Dalrymple,[355] a legacy was given “to the children of the late C K, who shall be living at my decease”; C K being dead at the date of the will leaving illegitimate children, (of whom three were living at the testator’s death) and not having had at the date of the will, nor having ever had, any legitimate children, the three illegitimate children were held to be entitled.

The word “issue” is a term of more general signification than children; it includes not only children, but all lineal descendants, however remote, for successive generations. It has been called by Lord Holt a nomen collectivum;[356] but this word has frequently been construed to signify children, where it was so apparent from the context.[357]

The phrase, “dying without issue,” in wills, for a long time occasioned much obscurity, and was a fruitful source of litigation. Thus, if an executory devise were limited to take effect on a dying without heirs, or on a failure of issue, or “without leaving issue,” or “without issue,” the limitation was held to be void, because the contingency was too remote, as these phrases being interpreted to mean an indefinite failure of issue, the vesting of the estate would thus be suspended beyond the period allowed by law. But other words used in the will might control this construction, as to show that the testator intended to limit the vesting of the estate to issue living at the time of the death of the first taker. This contrary intent would be inferred by the use of the words “living,” or “leaving issue behind,” or “without children.” Unless such qualifying words, however, were used, the words “dying without issue” were construed as meaning an indefinite failure of issue.[358]

The statute law of New York, and many of the States, has settled the construction of this term, as it is provided under these statutes that it shall be construed to mean heirs or issue living at the death of the person named as ancestor.[359]

Gifts and devises are sometimes made to a “family,” and the decisions have given to the word the same construction as “kindred,” or “relations.”[360]

In Robinson v. Waddelon,[361] a testator gave all the residue of his effects to be equally divided between his two daughters and their husbands and families; the court rejected the words “husbands and families,” and held that the two daughters took the residue equally and absolutely as tenants in common.

Roper has the following observations on devises and bequests to a family: “The word family, when applied to personal property, is synonymous with “kindred” or “relations.” If it be asked, of what family is A, the question will be answered by being informed from what person he is descended, and whoever is related by blood to that stock is related to, and of, the family of A. This being the ordinary acceptation of the word, it may nevertheless be confined to particular relations by the context of wills; or the term may be enlarged by it, so that the expression may in some cases mean children, or next of kin, and in others may even include relations by marriage.”[362]

Personal chattels are not unfrequently described by reference to locality, as where a testator bequeaths the “household goods,” “things,” “property,” or “effects” which are in or about a house. These words, it seems, in general, will not pass cash, bank notes, bonds, notes, or other choses in action being in the house.[363]

In Woolcomb v. Woolcomb,[364] a testator bequeathed to his wife all his household goods, and other goods, plate, and stock, within doors and without, and bequeathed the residue of his estate to J S. It was held that the ready money and bonds did not pass by the word goods, for then the bequest of the residue would be void.

Bequests of “chattels and effects” are clearly adequate to pass the whole personal estate, yet where these words are collocated with household goods, they may be, and frequently are, restrained to articles ejusdem generis.[365]

A testator, after several legacies of bank stock and other stock and money, concluded his will as follows: “The remainder of my worldly substance, consisting of furniture, bedding, carpets, china, kitchen furniture, looking-glasses, crockery, etc., I give to my two daughters, etc.; these, with all money of mine that may remain in bank at the time of my death, with all claims or demands of whatever nature, I give to my two daughters, etc.” The testator had several shares of bank stock and other stock, not specifically bequeathed. It was held that this bank stock and other stock did not pass under the above bequest.[366]

The courts of equity, even in England, do not seem disposed to apply the rule ejusdem generis with so much strictness as formerly. In the late case of Swinfen v. Swinfen,[367] it was decided that in a bequest particularized by one word, followed by general words, the latter was not to be restricted to things ejusdem generis; as where the bequest was, “all my estate at S or thereto adjoining, also all furniture, or other moveable goods here,” it was held that the live-stock and implements of husbandry in and about the premises passed by the bequest. It was also held that money in the house at the time of the testator’s death passed to the legatee.

In Brown v. Cogswell,[368] where the bequest was of “all my household furniture, wearing apparel, and all the rest and residue of personal property, saving and excepting one feather bed,” it was held to carry the entire residuum of personal property. A bequest of furniture in a particular house (except plate) will include plated articles in use in the house, the word “plate” meaning solid plate only. Such a bequest embraces only the articles permanently in use in the house.[369]

Words, however, in a will, which if allowed to stand would produce repugnant and inconsistent results, may be rejected.[370] Others may be supplied where there is no doubt in regard to the words intended, and others may be transposed and changed to carry out the sense and intention of the testator.[371]

The will must be most favorably and benignly expounded to pursue and effectuate, if possible, the intention of the testator,[372] and of two modes of construction, that is to be preferred which will prevent a total intestacy.[373] The strict rules of construction adopted in England, when strictly and unflinchingly applied, had often the effect of invalidating wills; but there has, of late, been evinced a tendency to relax this stringency of construction, and the proportion of wills and bequests which have been declared void for uncertainty has been constantly diminishing; and, at present, it is becoming more rare, unless through some fatal accident or miscarriage in the preparation of the instrument. The same tendency is observable in the decisions of the American courts.

Construction with the aid of precedents and analogies is only resorted to to ascertain the intention of a testator; all construction is subordinate to that single purpose; and analogy and precedent should have no further influence when they lead one side of the intention. They should only be used as our assistants to this end.

It will be found useful and appropriate, at the conclusion of this chapter, to give the seven propositions of Sir James Wigram, in his approved and reliable work respecting the admission of extrinsic evidence in aid of the interpretation of wills. He divided the subject into seven propositions, as follows:

Proposition I.—A testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense, in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed.

Proposition II.—Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words, so interpreted, are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction, that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they maybe capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered.Proposition III.—Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words, so interpreted, are insensible with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible in any popular or secondary sense, of which, with reference to these circumstances, they are capable.

Proposition IV.—Where the characters in which a will is written are difficult to be deciphered, or the language of the will is not understood by the court, the evidence of persons skilled in deciphering writing, or who understand the language in which the will is written, is admissible to declare what the characters are, or to inform the court of the proper meaning of the words.

Proposition V.—For the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. The same (it is conceived) is true of every other disputed point, respecting which it can be shown that a knowledge of extrinsic facts can, in any way, be made ancillary to the right interpretation of a testator’s words.

Proposition VI.—Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator’s meaning, no evidence will be admissible to prove what the testator intended, and the will (except in certain special cases in Proposition VII) will be void for uncertainty.

Proposition VII.—Notwithstanding the rule of law which makes a will void for uncertainty where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator’s meaning, courts of law, in certain special cases, admit extrinsic evidence of intention, to make certain the person or thing intended, where the description in the will is insufficient for the purpose. These cases may be thus defined: Where the object of a testator’s bounty, or the subject of disposition, (i. e., the person or thing intended) is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator.