Van Allen v. Mooers , 5 Barb. 110 ( 1848 )

Willard, J.

The testator intended to divide the wood lot, mentioned in the will as No. 4, between his three grand-daughters, so that Maria Spencer who represented the testator’s deceased daughter Jane, should take forty acres in fee and in severalty, and the other two grand-daughters Maria and Gatharme, representing the testator’s son George, should take the remainder in fee and as tenants in common as between themselves. The doubt which has been raised as to the true construction of the devise arises from the words in the paragraph beginning with the word “included.” The complainant contends that these words control the prior devise to Maria and Catharine, of the residue, and give it to the three granddaughters in fee, as tenants in common. I think this is not the true construction of the will. The words “above mentioned” in the clause under discussion, refer to the wood lot above mentioned, the entire subject of the devise, and not to that part of it above, which remains after taking off the forty acres devised to Maria Spencer. Whether an adjective shall refer exclusively to the last preceding antecedent, or may refer also to one, or more, further back, depends upon the intent of the writer. In this case, the natural sense of the passage requires the ' adjective to refer to both devises. Such too, is the grammatical construction of the sentence. (See the case of Areson v. Areson, 3 Denio, 458, in the court of errors.) The part of a sentence in the words “included Maria Spencer, Maria Y. Evera and Catharine V. Evera my grand-daughters, I gave the above mentioned to them, their heirs and assigns forever,” must be construed distributively; and it thus means, that the portion given to Maria Spencer is given to her and her heirs and assigns forever, and the portion given to Maria and Catharine is given to them and their heirs and assigns forever. It was probably added by the testator by way of caution, to denote the quantity of interest which each devisee took under the will. The testator may not have been aware that by the revised statutes, (1 R. S. 748, § 1,) the preceding words carried the fee to the devisees. And it is observable that in every other part of the will, in which he devises real estate, he adds the usual words of inheritance, showing beyond controversy, that he intended the devisees should take in fee.

The latter member of the sentence from the words “included” must be construed by itself. It cannot, without violence, be connected with the preceding matter. It is absurd to suppose that while giving a part of a wood lot to his grand-daughters, the daughters of his son George, he should include under the same description, his grand-daughter Maria A. Spencer, to whom he had in the same sentence, devised the other portion of the lot, describing her as the daughter of his daughter Jane. When read by itself, it simply means that he had given the whole lot to his three grand-daughters, their heirs and assigns forever, in the proportions before expressed. This will thus interpreted, is consistent in all its parts, judicious in its provisions and consonant with the testator’s affections and social duties. The testator never had but three children, two daughters and a son. Both the daughters were dead when the will was made. The children of his daughter Eliza were provided for by the devise to them of a farm of one hundred and fifty acres. The grand-son of the testator by his son George, took another farm and the stock. Thus, all the grand-children were provided for but Maria Spencer, the daughter of the testator’s daughter Jane, and Maria and Catharine, the daughters of George. To these he gave the wood lot in the manner which has been stated. Throughout the will, the testator kept each branch of his descendants separate. In no instance has he connected the branches of different families, in the same legacy, unless, the case in question be an exception. In my judgment, it would do violence to the language to suppose that the testator intended to connect them in this instance.

Being therefore of opinion, that the testator devised the premises mentioned in the petition to the defendants Maria and Catharine alone, there must be judgment for the defendants, according to the terms of the stipulation, with costs.

Note. The above decision was affirmed on appeal, at a general term of the court, held in the county of Clinton, on the first Monday of July, 1849, by Justices Paige, Willard and Hand.