Barrus v. Kirkland

The safe practical rule for the construction oi wills, is, that the grammatical and ordinary sense of the words is to be adhered to, unless it would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument. This is the only mode of arriving at the intention of the testator, which is to be ascertained, not by conjecturing what the testator intended to do, but by arriving at the just meaning of the words which he has used. Grey v. Pearson, 6 H. L. Cas. 106. Warburton v. Loveland, 1 Hudson & Brooke, 648.

*514The application of this rale to the language of the will, under which.the plaintiffs seek to establish an absolute title to the legacies given for their benefit, is fatal to their claims. Indeed the construction for which they contend cannot be supported without entirely disregarding and setting aside an entire clause of the instrument. It is true that, taken by themselves, the bequests to the plaintiffs are in form absolute. But they are immediately followed by a clause appointing a trustee, who .is to take and keep the legacies previously given, with explicit directions to appropriate the income arising therefrom for the comfort of the legatees during their respective lives, and, after their decease, the property remaining is given in express terms to the trustee absolutely. These provisions relate to the same subject matter, and, construed together, as they must be, are unambiguous and consistent with each other. The creation of a trust,the direction to pay over income, and the gift of the remainder after the death of the cestwis que trust, control the general words of gift to the brothers and sister, previously used, and are inconsistent with absolute bequests to them. Regarding only the language of the will, and confining ourselves to ascertaining the intent of the testatrix, by giving an exact and just meaning to the words used, it is a gift in trust, the income only to be paid to the cestuis que trust during their lives in certain designated proportions, with a remainder absolutely to the trustee. In this construction there is no repugnancy or inconsistency, and full effect is given to every part of the bequest, without the change or rejection of a word.

This construction corresponds, too, with the general intent of the testatrix, as gathered from the whole instrument. Her brothers and sister do not all stand on an equality as the objects of her bounty. She has discriminated widely in making bequests to them, in the amount given as well as in the nature of the gift. Nor did she regard them with any greater favor than other persons not of her family or kin, to whom, as well as to the trustee, she has given liberal bequests. And the insertion in another part of the will of a gift to Mrs. Whitman, one. of the plaintiffs, absolute in its terms, seems to, show that the testatrix *515understood and had in her mind the distinction between an absolute gift and a gift in trust, and leads to the conclusion that the bequest in question was intended to be a limited one only.

Decree accordingly