Daley v. Koons

Chief Justice Shaeswood

delivered the opinion of the court,

The cardinal canon in the construction of wills is to ascertain, if possible, the intention of the testator, and carry it into execution, if it be 'not inconsistent with the rule or policy of the law. Ancillary to this, though still subordinate, are some special rules, settled by precedents, as to the meaning to be given to certain language. It is rare that two wills are exactly alike, and even if a professional draughtsman studiously follows the form of some'adjudged case, it may sometimes happen that other parts of the will, or the circumstances of the testator’s family, may make a difference. As a general rule, precedents, however, are to be followed. We are of opinion that the determination of the courts, as to the construction to be put on the words used in the will now before us, entirely accords with the evident intention of the testator. He gives, by. apt and formal words, estates in fee to his other children. To his daughter Mary Ann he gives the farm on which he then resided, “ for and during her natural life, and after her death to *249 her children in fee: and in the event of my said daughter Mary Ann dying without issue, I then, after her death, give and devise said farm, given to her for life, to my son William and my daughters Susan, Amanda and Wilhelmina, share and share alike, or their legal heirs and representatives (children taking the parent’s share), in fee.” He expresses-his intention twice that Mary Ann •should only take an estate for life. To lay hold of the words “ dying without issue,” to convert her estate into a fee so as to give her the power to dispose of it away from her children, if she had any, or away from her brothers and sisters and their heirs, if she had no children, would contravene and disappoint the manifest intention of the testator. Fortunately, there is no adjudged case in this state or elsewhere which requires or would justify us in doing so. Mr. Jarman, in his valuable treatise on wills, after referring to a number of authorities establishing the settled rule of construction to be that the words “in default of such issue,” following an express devise to any particular branch of issue, as children, sons or daughters, will be construed to refer to the issue before described, adds: “ It is well settled also that words importing a failure of issue (without the word such), following a devise to children in fee-simple or fee-tail, refer to the objects of that prior devise and not to issue at large:” 2 Jarman 872. The cases to which he refers fully support his position. There is nothing in Haldeman v. Haldeman, 4 Wright 29 , which throws any doubt upon this doctrine. On the contrary, Mr. Justice Strong, in his opinion, quotes and affirms it. He says: “The words ‘child or children,’ by which the remainder-men were described, are in their usual sense words of purchase, and are always so regarded, unless the testator has unmistakably used them as descriptive of the extent-of the estate given and not to designate the donee.” But the opinion of the court in that case was that the testator had “ employed the words ‘child,’ ‘ children’ and ‘issue’ indiscriminately, and all of them as meaning an entire line of lineal descent.” The decision has clearly no application to the case now before us.

. The main argument urged upon us by the learned and zealous counsel for the plaintiff in error, was that, under the construction put upon this will by the court below, if Mary Ann should have children, who should die in her lifetime- leaving children, these grandchildren would be cut off. This the testator evidently did not contemplate. If it were so, there would be considerable force in this contention. But upon the birth of any child of Mary Ann, the remainder would vest in such child, subject to open and let in other children subsequently .born; so that upon the death of such child, the interest and estate being vested, would descend to chil dren, heirs and legal representatives, under the intestate laws.

Judgment affirmed