W. H. Cotton (Shirley Stone with him), for the plaintiff. The widow claims
to take all the personal property under the third clause, subject to the several
bequests which follow; that is, she claims that she is a residuary legatee. The
will, under this construction, is full of repugnancies and absurdities. If she took
this
property by the third clause, the fourth clause is useless. If she has any right
under the fourth clause to the principal except in the contingency named, it is
the right of a childless woman to receive between $20,000 and $30,000 after her
death. The sanity of the testator might well be doubted if he devised away the bulk
of his property with a proviso that the devisee should not take it until after her
death.
When general and specific expressions stand immediately associated together, the
general terms are sometimes restrained to articles ejusdem generis. 1 Jarm. Wills
605. The context in the third clause answers these conditions in an unusual degree.
The testator begins the description of the property, which he intends to dispose
of by this clause, with the use of the general term "household furniture." There
is an evident desire throughout to give to the wife everything which had made a
part of their home life and daily associations. In furtherance of this purpose he
adds to the general description a specification of "piano, books, minerals, shells,
and curiosities," "including" these in the term "household furniture," and in close
connection with these things, peculiarly pertaining to home and its ornamentation,
as a part of the same thought, "every article of personal property in and about
said homestead, or wherever found." Now the specific words could not to the testator's
mind — of which this will is the minor — add anything to the range of
the bequest, if he understood that the general terms which he embodied in the clause
covered the entire personal property. They would have been meaningless and useless
verbiage. If he intended to give his wife all the property, he would have said so
without any specific enumeration. It would seem clear, from a view of the entire
clause, that he used the term "every article of personal property," c., in the limited
sense of ejusdem generis. Timewell v. Perkins, 2 Atk. 103, 104; Hutchinson v. Pough,
40 L. T. N. S. 289; Dole v. Johnson, 3 Allen 364; Johnson v. Goss, 128 Mass. 433
. It is commonly considered that this construction is favored by the circumstance
that specific or pecuniary legacies are given by the will to the same or other parties.
1 Jarm. Wills 606; Rawlings v. Jennings, 13 Ves. 39. This will is full of this kind
of confirmation of the restricted construction of the third clause.
The fourth clause gives the wife the use and income of his railroad stocks, government
and other bonds, during her natural life, this species of property making at least
five sixths of the entire personal estate. The principal sum is not to be impaired
by her if the interest and income is sufficient to support her in a generous manner,
and then only by the authority of both executors. This is a most significant provision.
It shows that the testator, while desiring to do everything that a man ought for
his wife, foresaw the danger to the other objects of his bounty, and so prohibited
her from trenching upon the principal without the consent of the
other executor. The testator then proceeds to give to some thirty or more other
beneficiaries under the will the sum of $9,550 in the eight succeeding clauses,
exclusive of the eleventh and fifteenth, which relate to the real estate. The repugnancy
is not only so manifest, but also so general — eight independent clauses,
reiterating eight times over the real intention of the testator, the real plan of
disposition which occupied his mind at the precise time — that it cannot be
argued that he intended to dispose of his whole personal estate to the wife in the
third clause, and overlooked, or forgot, his intention in the subsequent provisions.
This argument seems to be clinched and riveted when there is a general residuary
clause such as appears in this case. The wording of this clause is quite significant:
"Lastly, after the decease of my said wife, Susan A., and in the final disposition
of property," c. Final disposition of what property?
The real estate is finally disposed of by the second, eleventh, and fifteenth clauses
of the will beyond any question. Under the defendant's construction, the personal
estate is already finally disposed of by the third clause, and the others preceding
the residuary clause. What was then left for this residuary disposition, very comprehensive
in its terms and imposing in its appearance, to operate upon? Why the use of the
term "final," as though he considered that he had, up to that point, made no final
disposition of his personal estate? Why a residuary clause at all, if the wife was
intended as residuary legatee?
The following represents the scheme in the testator's mind, if the defendant's
construction is adopted: 1. The entire personal property is given to Susan A. absolutely.
2. The use and income only of the same property, or about five sixths of it, is
given to her for the term of her natural life. 3. One fourth, or nearly one third,
of the same property is given to thirty other legatees in succeeding clauses. 4.
The residue of the estate, which has already been exhausted twice, is given to the
nephews and nieces as a final disposition of the testator's estate. By the residuary
clause, he meant something beneficial to the donees. Wallace v. Wallace, 23 N.H.
149 ; Perkins v. Mathes, 49 N.H. 107 .
In the third clause he provides expressly that whatever the widow takes under that
provision is to be hers in such way that she can hold it without an invoice, and
dispose of it as she may desire. He did not intend this to apply to the entire personal
estate or to the general residue, for that would make the residuary clause an empty
thing.
C. A. Dole, for Susan A. Benton. If Mrs. Benton does not take the $3500 and bank
share, under the third clause, then it remains in the hands of the executors until
her decease, for it is not otherwise bequeathed, as the residuary clause takes effect
only upon her decease. Now, taking the third clause separately, what
is bequeathed by it? The word "article" means part, portion, or item of a whole.
"The fundamental idea of an article is that of an object comprising some integral
part of a complex whole." See Worcester's Dict. The testator uses the word in that
sense when he says "every article of household furniture," meaning every item or
thing that goes to make up or can be classed under the head of household furniture.
He then seems to have had some doubt as to whether certain things would be classed
under that head, and therefore adds, "including piano, books," c. Then he further
adds, "and every other article of personal property, in, on, and about said homestead,
or wherever found, belonging to my estate."
The words "every other" and "or wherever found belonging to my estate," remove any
limitation as to character or locality. And substituting the above definition of
article, the clause would read, "and every other part or portion of the property
in, on, or about said homestead, or wherever found, that constitutes my personal
estate." A person not a lawyer, and not familial with the many nice and discriminating
decisions, giving construction to particular words when used in a will, would rarely
have been as fortunate as the testator in his choice of language covering all his
personal estate. So we say the third clause, taken separately, is sufficiently definite
and intelligible; and we say the same as to the fourth and fifth, ninth, thirteenth,
fourteenth, and other clauses of the will, and these last specified clauses are
contradictory to the third clause. This brings the case under the rule of construction
where there is "repugnancy or contradiction between the several parts of a will,
though each part taken separately is sufficiently definite and intelligible." It
is an established rule "that where two clauses or gifts are irreconcilable, so that
they cannot possibly stand together, the clause or gift which is posterior in local
position shall prevail, the subsequent word being considered to denote a subsequent
intention. * * * If a testator in one part of his will gives to a person an estate
of inheritance in lands, or an absolute estate in personalty, and in subsequent
passages unequivocally shows that he means the devisee or legatee to take a life
interest only, the prior gift is restricted accordingly." 1 Jarm. Wills 472.
By this rule the absolute gift by the third clause, so far as it relates to the
railroad shares and bond is restricted by the fourth clause to a life interest.
"But the rule which sacrifices the former of several contradictory clauses is never
applied, but on failure of every attempt to give the whole such a construction as
will render every part of it effective. In the attainment of this object the local
order of the limitations is disregarded, if it be possible, by the transposition
of them, to deduce a consistent disposition from the entire will. * * * So, where
a testator, after devising the whole of his estate to A, devises Blackacre to B.
The latter devise will he read as an exception out of the first, as if he had said,
I give
Blackacre to B, and subject thereto, all my estate, or the residue of my estate,
to A." 1 Jarm. Wills 475.
Construing the will in question in accordance with the above rules, and the examples
given by the author under them, it would be read as though the third clause were
transposed and placed after the fifteenth; in other words, the third clause would
give Mrs. Benton all the personal estate restricted by or subject to the subsequent
clauses; that is, she would take all the personal estate, except the railroad shares
and bond, and the amounts covered by the bequests which were to be paid prior to
her decease. And this construction under the rules comports with the true intention
of the testator, as gathered from the whole will and from the facts stated in the
case.
It is evident that the testator supposed he had fully disposed of all his personal
estate, by the clauses preceding the residuary, except his railroad stock and bond,
and these he considered good and safe investments, so much so that while he wished
to provide for Mrs. Benton's comfortable and generous support through the income
therefrom, he with much care provided that these investments should not be changed
unless they failed to produce a generous return, or decreased in value, when he
directed his executors to judiciously make the change, "or use such parts of the
principal as may be necessary or desirable." If he had understood that there was
any of his personal estate undisposed of, certainly if to the amount of $3,500,
he would have first exhausted that, to make up the generous support of his wife,
before disturbing his safe investments. It will be observed that the amount of the
particular bequests to be paid upon the decease of Mrs. Benton is $7,850, the par
value of the railroad stock and bond is about $21,000, so there could be no occasion
for holding the $3,500 and bank share, nor indeed any sum in reserve, to provide
for the full payment of said sum of $7,850.
W. H. Cotton and Shirley Stone, for the plaintiff, in reply. The doctrine of ejusdem
generis applies to the third clause, or it does not. If it does, the only inquiry
is, Can money due on promissory notes, cash on deposit or on hand, and bank stock,
be classed as household furniture or in the nature of it? By no possible construction
can this portion of the estate be reached except the broad one, which would convey
all of the personal estate as well. It does not follow, because $3,500 and the bank
share are not particularly disposed of, that Mrs. Benton takes it. One of the purposes
of a residuary clause is to rake after, and take in all property that preceding
provisions — logically or locally preceding — have left undisposed of.
Such a clause operates upon all of the personal estate of which the testator died
possessed. And this is so, even though a residuary bequest, by the failure of other
provisions, becomes a gift of the whole. 1 Jarm. Wills 762.
It would seem by its wording that the testator understood the effect of this clause
in his own case to be what we claim. He bequeaths "the rest, residue, and remainder
of my estate, wherever found and however situate," and further on is an independent
direction to the surviving executor to distribute "all my estate found and remaining
in said executor's hands," to certain parties, in certain proportions. We say that
not Mrs. Benton, but the residuary legatees are the parties to glean the field and
take everything which has not been explicitly given to other legatees. The third
clause cannot be enlarged to take in this money and bank share without putting upon
it just that broad construction which would make Mrs. Benton sole residuary legatee,
and entirely ignore the residuary clause, which is the most consistent part of the
whole document.