Gardiner v. Guild

Gray, J.

Upon a consideration of the provisions of this will,

and of the numerous cases cited in the elaborate arguments of counsel, we are of opinion that the testator by the fourteenth article gave an estate for life to his daughter Caroline, and a vested remainder to her son William, being her oldest son at the time of the death of the testator, when his will took effect.

If the case depended upon the provisions of the fourteenth article only, we should, having regard to the leaning of the law in favor of vested interests, have no doubt that this was the true construction. Miles v. Boyden, 3 Pick. 213 . Pike v. Stephen son, 99 Mass. 188 . 2 Jarman on Wills, 117, 124 ; (3d ed.) 192, 197, 198.

In support of the argument that the words “ oldest son,” in this article, mean “ oldest son surviving ” his mother, the learned counsel for the defendants refer to the seventh article of the will, which they contend “is to the same effect, but more clearly expressed.” But such a reference seems to us, by the contrast between the terms of the two articles, strongly to support the opposite conclusion; for the fourteenth article omits not only the word “ surviving ” as qualifying the words “ oldest son,” but the direction that at the decease of his parent the estate shall “ descend ” to him; and the seventh article gives the estate over to another branch of the family, only on failure of “heirs of the body ” of the child of the testator named in that article, which would include issue in any degree; whereas in the fourteenth article the devise over is “ in case the said Caroline decease without children of her born,” so that, if the defendants’ construction should be adopted, then, in case Caroline should leave no children living at her death, but should leave grandchildren, the estate would go to another branch of the family, to the exclusion of her grandchildren. Such a construction would be inconsistent with the general intention of the testator, as manifested by both articles, to give the estate described in each primarily to the testator’s child therein named and its issue.

*29 It is admitted by the defendants that this last clause in the fourteenth article cannot be read literally, so as so mean “ shall die without having had a child.” It is argued that it means “ without children of her born, living at her decease.” But the true construction of this clause appears to us to be to refer it to the same period at which the oldest son of Caroline is to be ascertained, namely, at the time of the testator’s death, so that the remainder would, in any event, vest absolutely at that time.

It follows, that Caroline and William together can convey an absolute and indefeasible title in fee simple.

Decree for the plaintiff».