Hall v. Hall, 27 N.H. 275

Gilchrist, C. J. It is unnecessary, at this late period, to» cite authorities for the purpose of showing that the intention of the testator, if it do not contravene any principle of law, is to be the guide of the court in the construction of a will, and the only question in this case is, what land did the testator intend to devise to the demandant by the language he has made use of. The testator devised to his grand-children, who were the children of Lyeurgus Sherman, lot No. 17.

This lot is included in the description of the tract of land which the demandant says is devised to him, but is excepted out of the operation of that devise. The will gives to the demandant, Stephen C. Hall, “ all that part of my homestead farm situate in said Manchester, and all lots of land which lie southerly of Bridge street and westerly of Pleasant street, except lot numbered 17, above named.” The will then gives to the tenant, Henry C.

Hall, “ all the residue of my home farm situate in said Manchester, and lying north of said Bridge street, east of said Pleasant street, and the Amoskeag Manufacturing Company’s land,” &c., and also the reversion of certain other land, &c. Upon the tenant’s construction, the land lying south of Bridge street and east of Pleasant street would be undevised, and also the land lying north of Bridge street and west of Pleasant street. It is not at all probable that the testator intended to leave any portion of his property undisposed of by his will.

And of two different constructions of a will, each of which should leave a certain portion of the estate undisposed of, other things being equal, that construction would be preferred which would exempt the smallest quantity of the property from the operation of the will. However, the words used by the testator are the means we are to use to ascertain his intention, and however they may be scattered, if they explain the intention, they are to be collected and put together, in order that the will may be carried into effect.

But whether the testator intended to die intestate as to any portion of his property, is a question not necessary now to be examined. The clause devising the land to the demandant would be fairly susceptible of two constructions, if there were nothing to control it; but the exception of lot No. 17 is a matter of most material importance. If the testator did not intend to devise to the demandant the tract of which lot No. 17 forms a part, why did he make any allusion to this lot ? Every word of a will is to have effect, if possible.

Nothing is clearer than that by excepting lot No. 17, out of the operation of this devise, the testator intended to give to the demandant that particular tract to which lot No. 17 belonged. He did not wish to devise that lot, because he had already given it to his grand-children, and as he had devised it in the clearest and most unambiguous language, it was not necessary to allude to it again, unless he at that time had in his mind the tract of which it was a part, and unless he meant to give that tract to the demandant. The reference to lot No. 17 cannot be rejected from the will as surplusage.

The allusion to it shows what he was thinking of, and clearly proves that if he did not at the time think that he was giving this tract to the demandant, any mention of lot No. 17 would be idle and unnecessary. No other reason can be assigned for it, and that seems to us perfectly satisfactory. We do not know that any reasoning can make the point plainer than this simple statement of it, and if this do not show the testator’s intention, the only remaining course would be to reject the reference to lot No. 17 and give no effect to it.

But the law requires us to give effect to every word in a will, if possible, and by rejecting this reference we do not expound the testator’s intention, but we make a new will for. him. The opinion of the court is that the testator intended to give to the demandant all the lots lying southerly of Bridge street, and the meaning which the testator attached to the words, “ southerly of Bridge street,” is shown by his reference to lot No. 17, which is one of the lots lying southerly of Bridge street.

This shows that he meant to give the demandant all the lots that were southerly of Bridge street, and shows what he meant by that expression. He has also used the same form of words in relation to Pleasant street. He gives the demandant all lots of land lying “ westerly of Pleasant street.” Now as he has used the same form of expression in relation to Pleasant street that he has used in relation to Bridge street, and as we have an exposition of his intention in reference to Bridge street, he must be considered as having the same intention in reference to Pleasant street.

He has given the demandant “ all lots of land lying southerly of Bridge street and westerly of Pleasant street.” ■ In order to accomplish the testator’s intention, it is not necessary that the land should be both southerly of Bridge street and westerly of Pleasant street. The descriptive words are to be taken distributively. They mean that the demandant should have all lots of land.which lie southerly of Bridge street, and also all lots of land which lie westerly of Pleasant street. This appears to us to be a fair construction of the will, as it gives the same effect to the same forms of expression.

As we think, this is the meaning of the will, by giving this effect to the descriptive words, and applying them to the- land as marked upon the plan, they will be found to include the tract which the demandant contends was devised to him. Judgment for the demandant.