Petters v. Petters , 15 S.C.L. 151 ( 1827 )

Curia, per

Johítson, J.

The rule of law that when two clauses in a will are so totally repugnant to each other that they cannot both stand together, the last shall prevail, which is made the ground of this motion, is incontro-vertable ; but it was never intended to apply to every imaginary incompatibility which ingenuity might suggest. The salutary maxim, ut magis valeat quam pereat would induce us to make an attempt to reconcile them before we applied the rule. II in the interpretation of this will, we call into, our aid the universal rule, that the intention of the testator is to be collected from the whole will taken together, and from the obvious meaning of the words used, it is apprehended that the seeming incongruity will disappear. In the first clause the testator devises the use of his mansion house and farm to his widow during her widowhood, and in the eighth he devises the same with other lands to the defendant in fee; now let it be recollected that the several clauses constitute but one expression of the will of the testator, and that the first was in-his eye when the 8th was penned, and let it be asked, what did he intend ? If these two clauses were read together you have the answer; to his widow he gives the use for a limited time, and to the defendant the fee simple. These estates may exist together, and are found in all the relations of landlord and tenant, andm the innumerable trusts that are daily createdby deed or operation oflaw. There is then no incompatibility nor repugnance in these clauses. An experienced clerk would probably have in the devise in fee reserved the use, but we well know that for the most part, and especially in the country, wills are drawn and executed without the aid of counsel, and to require that they should be dressed up with technical precision, would be to deny the good people the right of disposing of their property bj will.

New Trial refused.