Hammett v. Hammett

Stewart, J., delivered the opinion of the Court. This case involves the construction of the following clauses in the will of Robert II. Hammett: “I desire that my’half of all the property, real and personal, held jointly by my brother Jesse and myself, shall be for the use of my wife during the time she shall remain my widow, for the support of herself and children.” “If she should marry again, I devise the same to my two children equally, and should one of them die, the property to go to the survivor, and in the event of the decease of both, then the property to go to my brother Jesse and his children, or the next of kin.” According to' the conceded facts, his wife did marry again, and the two children have survived that event, both are of ago and have children. There can be no question that the intention of the testator to be derived from a consideration of all the provisions, of the will, must govern its construction, and be carried into effect, if lie has used language sufficiently intelligible to enable the Court to comprehend his purpose.

The testator does not undertake in the first clause, to dispose of the lee in the property. He merely gives the use of it to his widow, for the support of herself and children, so long as she remains such. Without other provision, his children would have taken the property in fee by inheritance, after the determination of the limited estate given to his wife. It is to be presumed, the testator was aware that such would have been the éffect, and that he so intended, in case his wife never married, but continued a widow.

The language of the will should not be construed to impair the legal rights of the children, unless it can be clearly deduced therefrom, that such was the intention of the testator. The testator obviously had in his contemplation, when he made his will, that his wife misht not remain his ³¹⁰ ■widow, and very clearly provides that in the event of her marriage, her rights in the property should cease, and the children should forthwith take the property equally. The words used by the testator, “all the property, real and personal,” are sufficient as the law then stood, to dispose of all his interest in the property. Under that provision his children would take the property after the determination of his wife’s estate by her marriage, which they would have inherited at her death, if she had remained a widow, under the operation of the former provision.

From both provisions, it seems manifest the testator designed to give the property to his children absolutely, if in the contingency provided for in his will, one or both of them as the case might be, should then be alive. Where there are two or more contingencies provided for in the will, and it is uncertain which, it is more reasonable that one should be adopted, which regards the natural intention, to be presumed, that the testator did not moan to disinherit his children. If we should select the contingency that he referred to, the death of his children, whenever that might occur ; such a construction would confine the estate, given to the children, to a life interest in the property. The testator having given them by the first words, a fee-simple, it is not a fair presumption that he intended to reduce that estate, should one or both be alive when the contingency happened.

It is much more natural that he should design if his children or one of them was alive, when the right in the property was provided to vest, that both, or the one surviving, should take it. By this construction the property would belong to them both, if they were then living, or to that one happening to survive, but if both were then dead, the limitation over to operate. The testator was providing for the occurrence of events as they might happen, in the future ; which, it ³¹¹ was not within the compass of his ability, certainly to know whether they would occur or not, or if they should transpire, in what order that would be. Whilst mere conjecture must not be taken for