Long v. Labor

Gibson, C. J.

This residuary bequest is susceptible of opposite constructions; the one founded on a particular form of expression, and the other on an intent apparent from the frame of the will. The testator, having directed his personal property to be sold immediately, and his land to be sold at his widow’s death, and having given nearly equal legacies to his living children, as well as to the children of those who were dead, proceeds to say: “ the legacies hereinbefore (directed) to be divided to my children and grandchildren (are) to be paid out of the sale of the said property, real and personal; and the remainder, if any, after the said legacies are paid, (is) to be divided among my children who may be living at the time of such distribution; and in case any of them should be deceased, their heirs (are) to receive, in equal parts, such share as their parent would be entitled to receive, were they living.” As the words in the last clause are properly applicable to the children of those who should die in the interval, and not to the children of those already dead, a strict interpretation of them would exclude the latter. This is the interpretation of the defendant, and it certainly receives countenance from Gray v. Garman, 7 Jurist, 275, in which the bequest was in nearly the same words, but predicated of persons who stood in a very different relation to the testator; but it receives no countenance from Hough v. Hough, 4 Rawle, 363 , in which the bequest was to the testator’s present surviving children, and the representatives of them that shall be then deceased — words too pointedly exclusive of the children of those dead at the making of the will, to leave room, for construction. Thus stands the case on the argument for the plaintiff, and on what was probably an accidental form of expression adopted by an unskilful and illiterate penman. But the choice or collocation of words set down by one who could neither write nor spell with tolerable accuracy, is certainly entitled to no great respect as special indices of Ms meaning. Instead of the random expression used by the testator, it is very probable he would have said on another trial to deliver his meaning: “to be divided among my children living at the time of such distribution, and the heirs of those dead;” in place of which, he fell upon a roundabout mode of expression, which, *232 strictly taken, would introduce an inequality of distribution inconsistent with the ruling principle of the rest of the will. “We cannot,” said Lord Mansfield, in Chapman v. Brown, 3 Burr, 634, “from arbitrary conjecture, though founded on the highest degree of probability, add to a will, or supply an omission in it; but we may construe a will, and, from what is expressed, necessarily imply an intent not particularly specified in words.” Besides, it is a familiar rule of construction, that the intention is to be collected from the whole will. Here, we are not merely left to conjecture that the testator did not mean to exclude the offspring of the dead, from the absurdity or the injustice of the thing; but we can resort to his general principle of equal distribution which pervades every other part of the will. Had he explicitly adopted one rule of distribution for a part of his estate, and another for the residue, we would be bound to follow his directions; but the result desired by the defendant, can be obtained only from interpretation which may be influenced by other considerations. The words “ any of them,” may be referred to the living or the dead; but more naturally to the living as the proximate antecedent, and the one of which alone contingency was predicable. Still, the propriety of this depends on grammatical construction, which has not always, though it has usually, a controlling effect. In the long series of cases in which survivorship was limited to the death of the testator, beginning with Stringer v. Phillips, 1 Eq. Ca. Abr. 292, ph, and ending with Mayberly v. Strodes, 3 Ves. 450, grammatical construction was disregarded; for, as was said by Sir William Grant, in Brown v. Bigg, 7 Ves. 279, a testator generally supposes that a legatee will outlive him. ' I should say, he always supposes it where he omits to provide for his death in the testator’s lifetime. A strictly grammatical construction, therefore, would refer the survivorship to the period of distribution; yet it has generally been overcome by insignificant circumstances of general intention. Here it seems to have been limited to no particular period; for to five of the testator’s living children, he gave $600 each; to the children of a deceased daughter, also $600; to the five children of another deceased daughter, $100 each, probably to avoid insignificant fractions in the division of an additional hundred; and to the remaining son, $800, in consideration of privileges yielded by him to the widow, in obedience to the will. Thus we see, that the principle of his will is equality; and we are bound to give it effect so far as there is room for interpretation. In Gray v. Garman, no such principle was discoverable; for nothing had been previously divided *233 among the residuary legatees, by any measure of distribution whatever. Besides, it did not appear that the testator had known or seen the deceased brother or sister of his wife; and it is not to be supposed, that he would be so solicitous to provide for the offspring of a stranger as he would be to provide for those to whom he was bound by ties of nature. That case was well decided on its circumstances ; but it is not a precedent for the present. It cannot be doubted that the intention was not to discriminate between the children of the dead and the children of the living; and, as the question is open to construction, we are bound to carry out what we suppose to have been the testator’s general plan.

Judgment of the Common Pleas reversed; and it is considered by the court here that the plaintiff recover of the defendant $163.82, with costs, pursuant to the agreement in the case stated.