Persis Dewey versus Frederick Morgan, 18 Pick. 295

Shaw C. J. delivered the opinion of the Court. The question in this case, depends altogether upon the construction of the will of Reuben Morgan, the father of the parties. If the operation of the will is, to give the residue of his estate to the tenant, it is conceded, that the present action, in which the land is claimed by descent, as intestate property, by the demandant as heir at law to her father, cannot prevail. In construing a will the intent of the testator is to govern, unless repugnant to the rules of law ; and the whole is to be taken together.

Another rule applicable to the present case is, that the exact grammatical sense and collocation of words, will not govern, to the exclusion of the apparent intent, reading the language conformably to its general scope ; and this consideration is the more important, when it is manifest that the will is illiterate. The Court are of opinion, reading this will, subject to the guidance of these rules, that the testator intended to dispose of his whole estate, and that after the specific bequests, it was his intention to give the whole of his remaining property to his son, Frederick.

This construction undoubtedly renders nugatory some provisions of the. will, such as the nominal legacy of one dollar to Frederick, and also the gift of certain personal property. But this is only an instance of that redundancy, which is often found, especially in illiterate wills, drawn by persons not conversant with rules of construction. The terms are, after specific directions to Frederick, as sole executor, “ and when my estate is all settled by my said executor, it is my will that the remainder all go to my said son, Frederick.” The construction is, all the remainder of my estate.

The word all repeated strengthens this construction. The word “ estate,” is sufficiently broad, in its import, to carry real as well as personal property, unless limited or restrained by the context, or by some express or tacit reference to other provisions ; and in this will there is no such previous enumeration of personal property as to control the general words. The recital, that the testator had done something for his other children, and his giving them nominal legacies, shows, that he did not intend to make an equal distribution among his children.

The phrase “ done something,” probably originated in that caution, which avoids a more exact recital, lest the fact should be afterwards controverted by some of the children, and thus lead to family disputes. It was contended, that the word “remainder,” in the last clause in the will, was so connected with debts and other matters of personalty, that it must mean the remainder of such personalty.

But this argument is not well founded ; the clause immediately before the residuary clause in question, is a direction to collect what should be due to the testator and pay all the debts he might owe, a directiu.. indeed wholly superfluous, because it would be his duty, without such direction. Then commences a separate and independent clause, already quoted : “ And when my estate is all settled,” &c. &c. The word “ remainder ” then, has reference to the whole of the will, and gives all not before disposed of.

If it be held, that remainder must be property of the same kind which is given here, it is so ; he had given a freehold estate to his wife, in one third of his real estate ; then the remainder embraced the two thirds not given, and the remainder expectant on the termination of the wife’s life estate, in the one third. The immediate antecedent to remainder is “ estate ” ; and in a will this word carries a fee. The proof arising from the extraneous facts does not much vary this result.

It shows a reason why the testator should have a particular regard for Frederick, who had remained with him many years, and give him a preference over those, who had been settled away from him. The making of the deed can have no effect; perhaps the testator erroneously supposed that a deed would be more effectual than a will to execute his intent. But whatever his view was, it is immaterial. Had the deed been to anotner person, as supposed in the argument, it would have presente a very different question. Demandant nonsuit.