Rose v. McHose's Executors

Napton, Judge,

delivered the opinion of the court.

It is extremely difficult to give a satisfactory interpretation of the will of McHose. This difficulty does not proceed from the use of ambiguous terms, but from the very peculiar style in which the testator chose to express his ideas, and the indistinctness of the ideas themselves. In some cases it is plain that he does not mean what lie says, and his intentions, as indicated by his words, must be totally disregarded in order to effectuate another intention more prominent in his mind. All that we can do is to give effect to the main and leading purposes of the testator, not pretending that the whole will can be reconciled throughout, and all its details be executed.

The interest which is given by this will to the widow and children of the testator is, upon the whole, clear enough, and we think it is precisely what the law would have given them, neither more and no less. We do not adopt the interpretation which the counsel for the widow has insisted on, that by the will the widow is owner of the entire estate, with power to dispose of it at her pleasure, and subject to a division with her children of what remains at her second marriage or upon her youngest child’s attaining majority. Such a construction we regard as totally at variance with a leading and prominent object of the testator manifested throughout the will. When he speaks of the share of his children, he speaks of it as “ their rights, title and interest — as something fixed and determinate, not subject to the will of any one else, nor liable to be defeated by contingencies. It is true that some expressions in the will have to be disregarded in giving this construction to it. He speaks of the division, to which he refers upon the happening of certain events, as confined to his children “then living;” but he evidently re- *595 refers to a dying without issue, in which event the provision was unnecessary. If the case had been put to the testator, of one of his daughters marrying and dying before twenty-one, leaving issue, and he had been asked whether he designed to cut off his grand-child, no doubt can be entertained that his answer would have been in the negative. The testator did not contemplate such a case; it was not in his mind, and we must disregard the words “then living” in order to carry out his real purposes.

In construing this will we have not thought it important that very great stress should be laid upon any particular expression or detached clause. In some of them it will be seen that the testator has a very confused idea, or none at all, or means the very reverse of what he says. He speaks of his wife marrying “ of her own free will,” as though he contemplated the contingency of her being compelled to marry. After beginning with an apparently absolute devise of his entire estate to his wife, he proceeds to “ reserve to her the right of disposal in the manner following,” and then the testator’s mind appears to wander to another subject.

Notwithstanding the apparent absurdities and contradictions and obscurities about this will, we feel no doubt about the main results. The principal object in view is to provide for his wife and children, and for this purpose he fixes their relative interests in all contingencies at just what the law fixes it. Up to the period of a second marriage, if such an event should occur, and up to the period of the arrival to full age of his youngest child, he gives his wife, in addition to her fixed share, the use and control over the whole estate, with power to manage it, as he himself if living would, for the maintenance of herself and children, and for their education and advancement. So far as the interest of the children is concerned, the wife is but a trustee, and is only authorized to use the fund entrusted to her care for such purposes as fall within the object in view by the testator. That it would be in accordance with the spirit and meaning of the trust to advance to any of the children, upon marriage or upon ma *596 jority, such share of the estate as would ultimately be coming to such child, or such portion of it as would not impair the capacity of the mother to keep up the home establishment, is also very clear.

The question in this case is whether the widow is compelled to pay over to the oldest child, on arriving of age, the share of the estate to which, beyond doubt, she is entitled ultimately. That such a payment, by way of advancement, would be in the power of the mother, and would be entirely in accordance with the directions of the will, and in conformity to the trust confided to her, we have already declared ; but we have been very much embarrassed to determine whether the rights to this share is a positive one, under the will, and to be enforced without regard to circumstances. The question is not now whether a court of chancery would see to a reasonable performance of the trust confided to Mrs. McHoso by the will of her husband, but whether the will gives an absolute right to each child, on attaining majority, to the possession of the property secured to that child by the will. Either construction is entirely consistent with the provision which gives the widow the control and use of the property until the youngest child attains majority. By requiring the widow to advance each child’s portion upon attaining majority, she would still retain the use of her own portion and all the portions of the children not advanced, and the estate would only be diminished in proportion as the expenses of the family would be by the separation of each child as he or she became of age. This construction is quite consistent with some of the language employed by the testator, but is difficult to be reconciled with other portions. He declared that if his wife remained single during the minority of his children “ then she shall at their maturity” give the children their shares. The word “ then” may be understood, not as indicating the point of time when the payment was to be made, for that is fixed “ at their maturity,” but as simply equivalent to “ in that event.” The words “ at their maturity” very strongly favor the conclusion contended for by the *597 plaintiff, since it may be very naturally understood to mean the maturity of each child, and must be very much distorted to mean eleven years after the oldest attains her majority. But the sentence does not end here; he proceeds to direct his wife to give at their maturity to his children “ who may then bo living and he further says, that “ the division of the said property then existing shall be made equal,” &c. These latter expressions are scarcely reconcilable with the idea of giving to each child as the age of majority is attained, but appear to look to a single division upon reaching a period when some of the children might be living. The words “ then existing” contemplate the possibility of a diminution of the estate by reason of the necessary expenditure in maintaining, educating and advancing the children, and keeping up the domestic establishment; but this is not conclusive as to the point of time when the distribution is to be made. Upon' the whole we are not satisfied that it was the testator’s intention that his widow should be compelled to pay over each child’s portion as that child became of age, although there are many expressions in the will which would lead to that conclusion. The prevailing idea of the testator seems to have been of a single division to be made at one time, and of course that could only be made when all the children were of age. We have no doubt of the power of the widow to pay over portions to her children as they marry or attain their majorities, and we by no means intend to say that, under certain circumstances, a court of chancery would not compel such payments. She is a trustee for her children, not accountable to the probate court for the manner in which the estate is managed, but still not beyond the reach of a court having general equity jurisdiction. Wc do not perceive any reason why Mrs. Mctlose’s share of the property, or such proportion of it as would not impair the means of her mother in keeping up the home establishment, has not been paid. There may be good reasons. It might be proper to secure her separate enjoyment of the property so that it would not be liable to the debts or contracts of the husband. *598 We confine our opinion to the case now presented, and we go no further than to say, that the widow is not compellable to pay out the share of the plaintiff under the will, at this time, without regard to circumstances.

The other judges concurring, the judgment is affirmed.