Yearnshaw's Appeal

Paiíte, J.

The question presented by this appeal is a novel and peculiar one, and not altogether free from difficulty. It relates to the construction. of a will, and of course falls readily within the familiar rule that the intention of the testator is the,-, thing to be sought, and that, when found satisfactorily evinced by the instrument as a whole, it is to govern,, notwithstanding any technical or literal meaning'of particular clauses to the contrary. Such difficulty as exists here is in determining satisfactorily what was the real intention of the testator.

*24 After making certain specific devises and bequests the will proceeds as follows: “And, whereas, I have entered into a contract to sell or lease a certain portion of my mineral lands to Jefferson Crawford for a certain price which, is stipulated in a written agreement between said Crawford and myself, now, if the said sale is consummated, I hereby make the following bequests: I give and bequeath to Charles Dudley, son of William E. and Eliza V: Dudley, the sum of five hundred dollars; I give and bequeath to C. McCoy Clark, son of Russell and Pkilena Clark, the sum of five hundred dollars.”

It is a conceded fact in the case, that the contract referred to in this clause, between the testator and Jefferson Crawford, was never consummated. But it is also conceded, that, in consequence of the discovery of valuable mineral on the testator’s lands after his death, his estate had largely increased in value, so as to leave a large surplus after paying all the bequests and legacies, including those above specified. Upon these facts, one of the questions in the case is, whether the two legacies above mentioned ever vested at all. If it was to be determined solely upon the language already quoted, it would be difficult to say that they ever vested. That, as urged by the appellant’s counsel, clearly makes the consummation of the contract with Crawford a condition precedent to the vesting of these legacies. If there were nothing further bearing upon the question of intention, for the court to say that they should be paid, although that contract was never consummated, might perhaps justly be characterized as making a will for the testator which he had never made for himself.

But there is a clause immediately following that already quoted, which, I think, sufficiently shows that the testator’s intention was to make these legacies contingent, not necessarily upon the fact of there being a surplus arising in the particular manner suggested in the. will, but upon the fact of there being a sur *25 plus at all beyond wbat was necessary to pay the previous bequests and legacies. That clause is as follows : “And, lastly, if the contract entered into between Crawford and myself should be consummated according to the conditions thereof, it is my opinion there will be a surplus after paying my debts and the bequests hereinbefore made; if so, I desire that the same be divided between my legatees in the same ratio that I have already given them.” It is true, the testator still suggests in this clause the consummation of the Crawford contract as the only source from which he anticipated any such increase to his estate as might leave a surplus after the payment of all the legacies and debts. But this language does not make the disposition of the surplus contingent upon its having arisen in that particular manner. He states the ground of his opinion, that there might be a surplus. He then says, “if so, I desire,” etc. What is the meaning of the words “if so?” They mean no more than this: “if there is a surplus.” They neither necessarily nor naturally make the previous fact, stated as the ground of the testator’s opinion that there might be a surplus, a part of the contingency upon which the operation of the clause disposing of the surplus was to depend. Inasmuch as the consummation of that contract was the only source from which' he anticipated any increase to his estate, it was natural enough for him to refer tq it as such. But it would have been unnatural and improbable that he should make a provision disposing of a surplus contingent upon its having arisen in any particular manner. The substance and essence of the condition was, that there should be a surplus. And to make the operation of the will depend upon that surplus having arisen in the special manner anticipated by the testator, would be to defeat instead of executing his evident intention. But if this is the correct construction of the clause disposing of the surplus, then it affects very *26 materially the construction of the prior clause giving the contingent legacies. For where the last clause speaks of “a surplus after paying my debts, and the bequests hereinbefore made,” it evidently includes the two lega-, cies which were previously made dependent literally upon the consummation of the Crawford contract. This the counsel for the appellant concedes. And he then argues that the explicit language of the prior clause should restrict the more general language of the latter, and make the operation of the clause disposing of the surplus dependent also absolutely upon the fact of its having arisen from the consummation of the Crawford contract.

But it seems a more reasonable construction, and one more in accordance with the evident intentions of the testator, to say that the more general language of the latter clause modifies the former. It seems to reveal with sufficient clearness that the real condition, in the thought of the testator, not only in disposing of the surplus, but in giving the contingent legacies, was that there should be a surplus beyond what was necessary to pay his debts and the previous absolute legacies. The only source from which he then anticipated such a surplus was the consummation of that contract. And therefore he used the phrase “if that contract is consummated,” as precisely equivalent to the phrase “if there is a surplus of my estate after payment of the debts and legacies already given.” The latter clause shows, that, in his mind, the one phrase was equivalent to the other.

• The counsel for the appellant argues very truly that it was clearly the design of the will to place these legacies upon a different footing from the others. And he then says, that if the only contingency upon which they depended-was that there should be something to pay them with, then they were on no different footing, because all the legacies were dependent upon that. But this is hardly so. The other legacies were absolute. If there *27 should not happen to be enough estate to pay them, they would abate proportionally. But they would all be entitled to be paid in full before these contingent legatees would be entitled to any thing. This certainly placed them on a different footing, giving the absolute legacies a priority over the contingent ones.

On the whole, we are of the opinion that the circuit court has arrived at a correct result.

There was no bill of exceptions in the case, and, as some of the material facts appear only by stipulation in the circuit court, which is strictly no part of the record, they could not have been considered here except by the consent of the counsel. As that consent was given on the argument, we have passed upon the case upon the papers as they appear in the return.

By the Court. — The judgment is affirmed, with costs.