In re Keniston's Will

• Decision Date: 12 February 1901
• Citation: 50 A. 558,73 Vt. 75
• Parties: In re KENISTON'S WILL.
• Court: Vermont Supreme Court

50 A. 558

73 Vt. 75

In re KENISTON'S WILL.

Supreme Court of Vermont. Orleans.

Feb. 12, 1901.

Exceptions from Orlearns county court; Taft Chief Judge.

In the matter of Mary E. Keniston's will. From a judgment affirming the decree of the probate court construing the will, certain legatees except Reversed.

The clauses of the will which were in controversy were the second and third, which were as follows: "(2) I give and bequeath to my husband, Nathan Keniston, the sum of two thousand dollars; also my farm in Greensboro, known as the 'Conant Place.' (3) After the decease of my husband, Nathan Keniston, it is my will that what remains of the abovementioned property shall be divided as follows, viz.: One-third shall be given to the American Board of Commissioners for Foreign Missions, incorporated in Massachusetts in 1812; and one-third shall be given to the Woman's Board of Missions, Auxiliary to the American Board of Commissioners for Foreign Missions; and one-third shall be given to the person who when the same is payable shall act as treasurer of the American Home Missionary Society, formed in the city of New York in the year of 1826, to be applied to the charitable uses and purposes of said society, and under its direction." The following clauses of the will which disposed of property began each with the words "I give and bequeath," or with the words "I give." The court pro forma rendered judgment affirming the decree of the probate court, by which it was adjudged that Nathan Keniston took an absolute estate under the second clause of the will, and that the legatees named in the third clause took nothing. The appellants excepted.

J. W. Redmond, for appellants.

Young & Young and J. P. Lamson, for appellee.

TYLER, J. The case here is upon the construction of the second clause in the will of Mary E. Keniston, which is as follows: "I give and bequeath to my husband, Nathan Keniston, the sum of two thousand dollars; also my farm in Greensboro, known as the 'Conant Place.'" It is contended on the one side that the husband took the $2,000 and the farm absolutely; on the other, that he took only a life estate. There is no rule of law to guide us in the construction of this clause, other than to ascertain from the entire contents of the will what was the intention of the testatrix in respect to the quantity of the estate which she intended to have vest in her husband at her decease, and what testamentary provision she desired to make for the other persons and corporations named. The third clause provided that what remained of "the abovementioned property" after her husband's decease should be divided among the American Board of Commissioners for Foreign Missions, the Woman's Board of Missions, and the American Home Missionary Society. By subsequent clauses she made small bequests, amounting to $335, to her relations; and then, after giving her husband the use of certain of her furniture, and her sisters her wearing apparel, she made the American Missionary Association her residuary legatee. So it appears that the testatrix had other persons than her husband in mind as objects of her bounty, though provision for him evidently was her first care. They had no children. If the construction claimed by the appellee is correct, the third clause is repugnant, and the three corporations take nothing; for the words "the abovementioned property" refer to no other property than that the testatrix had given to her husband in the second clause; and the third clearly expresses the intention that the remainder should pass to the three corporations after her husband's decease. The intention that these corporations should receive what remained of this property upon the happening of that event is as clearly expressed as that her husband should have it during his life, and effect must be given to this intention unless the words of the first clause are necessarily operative to convey the estate absolutely. Decided cases are not of much value unless they arise upon facts similar to those in the case in hand. It was said In Hibbard v. Hurlburt, 10 Vt. 178, that of the testator's intention to create both estates there could be no doubt, and that that Intention must be effectual unless there was a legal impossibility that they should subsist together. In McCloskey v. Gleason, 56 Vt. 207, 48 Am. Rep. 770, the clause in controversy was: "After all my lawful debts are paid, I will to my wife * * * all my property, both personal and real; but at her decease none of said property is to go to her heirs or my heirs, but it is to be economically used at her decease in constructing a monument. * * *" Held, that the first clause was limited by the others, and that the wife took only a life estate, with the right to use the principal if needed for her support. In Smith v. Bell, 6 Pet. 68, 8 L. Ed. 322, the clause was: "Also I give to my wife * * * all my personal estate whatsoever and wheresoever, and of what nature, kind, and quality soever, after payment of my debts, legacies, and funeral expenses, which personal estate I give and bequeath to my said wife, * * * to and for her own use and benefit and disposal, absolutely; the remainder of the said estate after her decease to be for the use of the said Jesse Goodwin." Held, that this conveyed only a life estate to the wife, and the reversion to the son Jesse. Marshall, C. J., said: "It must be admitted that words could not have been employed which would be better fitted to give the whole personal estate absolutely to the wife, or which would more clearly express that intention. But the testator proceeds: 'The remainder of said estate after her decease to be for the use of the said Jesse Goodwin.' Jesse Goodwin was his son. These words give the remainder of the estate after the wife's decease to the son with as much clearness as the preceding words give the whole estate to the wife. They manifest the intention of the testator to make a future provision for his son as clearly as the first part of the bequest manifests his intention to make an immediate provision for his wife." The doctrine is here stated that the intention of the testator, if ascertainable from the language of the will, when applied to his circumstances and the objects of his bounty, must govern, even if to accomplish it a limitation has to be placed upon language that is absolute in terms. In Bibbens v. Potter, 10 Ch. Div. 733, the testatrix devised all her estate to a sister "for her own use and benefit absolutely," and afterwards, by a codicil to her will, which she directed to be taken as part thereof, said: "After the death of my sister, I give and bequeath all property of mine which may then be remaining to my brother." Held, that the effect of the codicil was to cut down the gift to the sister to a life estate. In Stowell v. Hastings, 59 Vt. 494, 8 Atl. 738, 59 Am. Rep. 748, which is relied upon by the appellee, the words were: "I give to my beloved wife * * * the...