Jones v. Sothoron , 10 G. & J. 187 ( 1838 )

Stephen, Judge,

delivered the opinion of the court.

The question which this appeal presents for decision arises upon the true construction and legal operation of the clause in the will of John Sothoron, the former husband of the female appellant, Mrs. Elizabeth A. Jones, contained in the statement of the cause.

The testator left two sons and a daughter, Mary Elizabeth Jlttaway: and his widow after his death, gave birth to a son. Mary Elizabeth Jlttaway afterwards died, unmarried and without issue; and the question to be decided is, who were her legal representatives and entitled to the property bequeathed to her by her father’s will, upon the happening of that contingency ?

We think that the language of the will is too plain and explicit to admit of a reasonable doubt upon the subject. It was manifestly his intention to give to all his children, not an absolute interest in the property bequeathed to them, but an interest defeasible upon the happening of certain contingencies. In the case of his sons, the surviving brothers were to take if either of the sons died under age and without issue : and in the case of his daughters, upon the birth of a posthumous daughter, his surviving children were to take, in the event of their or either of them dying before marriage and without issue. We cannot accede to the proposition, that upon the birth of a posthumous son, the legacy bequeathed to Elizabeth Attaway, became absolute, anc gent limitation over to the surviving chij defeated, which would have been availabla ing of the contingency provided for by the' a daughter. On the contrary, we think that it tation of the will clearly forbids such a conclulj beyond controversy, that the testator intende"s-smwiyiiig son or sons to take the estate given to their brothers on the death of them or either of them under age and without issue, to the exclusion of his daughters; and his surviving children indiscriminately to take the share of his daughters, should he have more than one, upon the death of them or either of them unmarried and without issue. Such being the plain and evident intention of the testator, as collected from the language of the will, it is the bounden duty of this court, in the absence of all legal prohibition to the contrary, to carry it into full and complete effect, it being a rule that wills are to be favourably and benignly expounded, to pursue if possible the intention of the testator, which, when clearly expressed, cannot be varied or controverted by inference or argument from other parts of the will, or by the inconvenient or unmeritorious nature of the bequest. On the contrary, the court is bound to correct every inaccuracy and impropriety of terms in advancement of the manifest intention of the testator, however undeserving it may be of favour in a court of justice. Williams on Ex’rs, 715. It is understood that no objection is made to the validity of the executory bequests on account of the remoteness of the contingencies, upon the happening of which, the limitations over are to take effect, and we think that the objection was properly abandoned, as it was wholly untenable.

It is unnecessary to decide the question of jurisdiction adverted to in the argument, as the decree of the Orphans court appealed from was clearly correct upon the merits, and ought, we think, to be affirmed; but without meaning to decide the question of jurisdiction, as it is not necessary to the final disposition of this appeal, we deem it not improper to say, we are inclined to think that the Orphans court, under the circumstances of the case, had no jurisdiction to compel a re-delivery of the property for the purpose of making a new or different distribution of it: and that the decision of such a question, and the power to grant such an application, properly belonged to a different forum.

DECREE AFFIRMED WITH COSTS.