Pennington v. Executors of Van Houten

Cases and artificial rules will be of very little aid in the reading of this will; and will embarrass rather than enlighten us as to the intention of the testator.

If the intention can be satisfactorily gathered from the frame and provisions of the will and the language and connection of the particular clause, it is the duty of the Court to declare that intention.

I think the intention of the testator in this will can be so gathered.

The particular cluase on which the question argued has been raised is, “ but if my said son should die, having no children, then &c.”

*275The general frame and provisions of the will are these : He gives his wife, Rachel, the farm and dwelling house where he lived, the farming utensils, and all the stock of said farm, and his family of colored people, with the household and kitchen furniture, together with every article belonging to the same as he then occupied and enjoyed the same, until his son, Abraham Van Houten, should arrive at the age of twenty-one years, and gives his said wife $300 a year out of his estate during her natural life; all which he gives her in lieu of dower. He then gives certain pecuniary legacies. He then gives, devises and bequeaths to his son Abraham all the rest and residue of his estate, both real and personal, whatsoever and wheresoever lying and being, of whatsoever description the same may bo, to him, his heirs and assigns forever. His son was but about three years old. The testator then, (and therefore), proceeds to provide, that his executors shall rent out the lands and houses for the benefit of his son; the proceeds arising therefrom, together with his personal estate, consisting of money, bonds and mortgages bequeathed to his son, to be put out to interest, by his executors, for the benefit of his son, until he shall arrive at the age of twenty-one years; and orders his executors to give his son a good college education, and a decent support until he shall arrive at the age of twenty-one years ; “ but if my said son should die having no children, then my will is, and I dispose of my property in the following manner, viz. :” giving three legacies of $1000 each, and giving, devising and bequeathing the rest and residue of his estate, real and personal, one-third to his said wife, Rachel, in foe; one-third to Leah Garretson, in fee; and the remaining third to the children of Caspar Wessels, deceased, in fee.

In view of the frame and general provisions of the will, and the connection of the particular clause, if the particular clause had been, “ but if my son should die,” then &c., could there be a doubt that the meaning would be, die under twenty-one ? I think not. At this point of the will the thought occurred to the testator, that the son might have children though he should die under twenty-one, and therefore the words c< having no children” were added. The adding of these -words, it seems to me, makes *276no difference in the reading of the will. The main idea of the clause is, “ if he should die,” which means, as before said, under age. The idea expressed by the words “having no children” was a secondary idea, guarding against a remote contingency of his having children before he was twenty-one and dying before twenty-one.

There is nothing in the frame and provisions of the will, or in the particular clause ina its connection, to show that the testator contemplated or intended to put any limitation or qualification on the estate which should continue after the son attained full age.

It would hardly be contended that the testator intended that the son should not have a full and absolute property in the personal estate when he came of age. Can it be believed that he intended to subject the stock on the farm to any limitation or qualification to continue after the son should come of age, and for his whole life. If such was not his intention in reference to the personal estate, it follows necessarily, that it was not his intention in reference to the real estate. Ho could not, in this one and the same clause, intend one thing in reference to the personal estate and another in reference to the real estate.

Again, the fact that, in the event contemplated, he gives a third of the property, real and personal, to his widow, the mother of this infant son, shows that the death of the son contemplated was his death under twenty-one, and not the remote contingency which is contended for on the part of the defendants.

Being clearly satisfied what was the intention of the testator, I see nothing in any rule of law to prevent its being carried out in this case.

Decree for complainants.