Conant's Ex'rs v. Palmer , 63 Vt. 310 ( 1891 )

The opinion of the court was delivered by

START, J.

This bill is brought by the executors of the estate of John A. Conant for direction as to the payment of five hundred dollars in their hands as such executors.

A determination of the questions presented necessitates a construction of the following clauses in the will of Caroline D. Conant, formerly the wife of John A. Conant.

1. “ I give and bequeath to my sister-in-law, Mrs. Abigail P. Jermain, five hundred dollars, should she survive me.”

2. “ I give and bequeath to my cousin, Aurora Merriam, wife of John C. Merriam, Logansport, Indiana, one thousand dollars.”

3. “I give and bequeath to my sister, Ellen IT. Palmer, of Boston, one thousand dollars.”

4. “I give and bequeath to my sister, Jane F. Hastings, the remainder of my personal estate, being balance of fifty shares Brandon National Bank stock, after providing for the three last preceding bequests.”

5. “It is my will, if any one or more persons, legatees of this my will, shall not be living, at my decease, or the decease of my husband, then the next of kin to such deceased person shall inherit their share, provided they have parents living.”

6. “ It is my will that my husband, should he survive me, shall have the use and income of my bank stock during his natural life.”

Airs. Jermain survived the testatrix, but did not survive Air. Conant. It is contended by defendant Abigail J. Bishop, the principal legatee under the will of Airs. Jermain, that the sum bequeathed to Airs. Jermain vested on the decease of the testatrix, and was not subject to any use in Air. Oonant. The next of kin contend that the sum so bequeathed never vested in Airs. Jermain, but, under the fifth clause of the will, in them on the decease of Air. Oonant.

In construing the several parts of this will, the intent of the testatrix is to be ascertained and followed. Richardson v. Paige, 54 Vt. 373. When the several clauses of the will are read together, it is apparent that the testatrix intended that all of the bequests should be paid out of her bank stock. The first clause of the will makes the bequest to Airs. Jermain dependent upon her surviving the testatrix. The second, third and fourth clauses contain no conditions. The sixth clause gives the husband of the testatrix the use and income of her bank stock during his natural life. In determining whether the estate bequeathed by the first four clauses was subject to a life use in Air. Oonant, these clauses must be read in connection with the sixth clause, and effect given to all, unless a clear repugnancy exists between them. McCloskey v. Gleason, 56 Vt. 264. The first four clauses do not indicate any intention on the part 'of the testatrix to subject the estate thereby bequeathed to a life use in Air. Conant; but when considered in connection with the sixth clause, such intention is clearly apparent. While it is true that an absolute bequest will not be defeated by a subsequent repugnant clause, it is equally well settled that, if the subsequent clause is plainly a qualification or condition which was evidently intended by the testator to be read as a part of the preceding clause, it must be so read. Chaplain v. Doty, 60 Vt. 715.

In Clark v. Peck, 41 Vt. 152, Pierpoint, Ch. J., says : “ We are not to look to the words alone to ascertain the intent, but the language used is to be considered in connection with the situation of the parties, the surrounding circumstances, the subject matter, the object to be accomplished, etc.” When we examine these several clauses in the light of the situation and relation of the parties, the intent of the testatrix is clearly apparent. She desired to provide for her husband during his life, but did not want the principal of her estate to go to his heirs. She wanted her estate to go to her friends and relatives, after her husband was provided for. We hold that the estate bequeathed to Mrs. Jermain was subject to a use in Mr. Conant, and that the same did not become due and payable until after his decease.

The first clause of the will bequeathed to Mrs. Jermain five hundred dollars, provided she survived the testatrix; and this sum, subject to the husband’s use, vested in Mrs. Jermain on the decease of the testatrix, unless the bequest is qualified by the further condition contained in the fifth clause. This clause would seem to be repugnant to every preceding clause. When we look for the intention of the testatrix in the light of the relation and situation of the parties, it is difficult to give it airy effect. Counsel for the next of kin, who contend that we should give effect to this clause, are unable to tell us what the testatrix intended by the words, “ The next of lain to such deceased person shall inherit their share, provided they home parents liming.” If the sum bequeathed to Mrs. Jermain under the first clause of the will did not vest in her on the decease of the testatrix, then it is difficult to dispose of it under any of the provisions of the will.

In order to qualify a clause in a will .that is clear and unmistakable in its terms, by a subsequent clause, the intention of the testator to do so must be clearly apparent. We hold, that the intention to qualify the first clause by the fifth is not apparent; that the fifth clause is uncertain and inconsistent with the first clause and does not qualify it; and that the bequest to Mrs. Jermain Tested in her on the decease of the testatrix, subject to a life use in Mr. Conant.

Decree of the Court of Chancery affirmed and cause remanded.