Hart v. Stoyer

Opinion by

Mb. Justice Mitchell,

The language of the will in items one and three taken literally is inconsistent, as the first gives the dwelling house expressly to the widow for life, followed by the gift to the daughters, whatever may be its. extent, while the other gives it by description, necessarily inclusive, to his son George. But it is manifest that no such inconsistency was in the mind of the testator, and hence we must seek his intent by an examination of the whole will. It is true that if two clauses in a will are absolutely repugnant the latter must prevail even to the total exclusion of the first. But exclusion for repugnance is a principle of construction only to be invoked, as a last resort, after all efforts to reconcile and give harmonious meaning to both have failed.

Taking the whole will of Peter Stoyer together, it is clear that his first purpose was to make provision for his wife by giving her the house in which they had been living, and everything therein, for her life, with a horse, cows, and a share of the grain, fruit and garden stuff for her support. After this first purpose it is reasonably certain that his general intent was to divide his farm between his sons Peter and George, charging the portions in their hands with specified sums in favor of his other children. In carrying out this scheme he gives forty acres from the east end of the farm to Peter together with “ the adjoining dwelling house in which my son George Washington is now living ” and “ the remainder .... after the forty acres are cut off ” to George. This last devise covers the dwelling house-previously given by the first item, in these words, “to my beloved wife the dwelling house in which we are now living, and all there is therein, to have and to hold the same until her death, when it shall go to my two daughters, Marietta and Frances, with the exception of the organ, which shall go to my son Charles.” So far as the gift to the widow is concerned there would be little difficulty in reconciling the two devises by construing the later one to be the remainder in fee after the life estate previously given the widow. But what did the testator mean by “it” which is to go to the daughters on the mother’s death ? Grammatically “ it ” would seem to refer to the house, but the testator certainly did not mean the house alone, for he excepts the organ, which can only go as part of the contents. If he meant the house and its contents, then “ it ” was an incorrect word to express his meaning. Did he intend to include the house at all ? “ It ” is not a correct word to describe the contents of the house, but it is no worse for that purpose than to describe both house and contents. The grammar is faulty whichever meaning we give it. Returning to the general intent we observe that there were two houses on the farm, one in which testator lived and the other in which George lived. Both were upon the part devised to George, but the one in which he was living is specifically given to Peter. If the other is given to the daughters after the mother’s death, then George is left in the position of having no house though he is given a farm which has two houses upon it. But the objection to this view does not rest solely on the improbability of such a division of the estate. By item one the widow is expressly to have the dwelling house for life and a share of the crops etc., “ until she shall no longer be able to take care of herself and must be kept, cared for, and boarded by my son George as hereinafter stated,” and by item three George is to give his mother her share of the crops “ as long as already stated, and keep and take care of her cows and horse, and take care of and provide all things needed for the comfort of his mother during her life time.” Where is he to keep, care for and board his mother, except in the house which she is to have for her life but which is on his farm and is included in the devise to him by item three ?

There is no construction of this will which is entirely free from objection. The one which would make the word “ it ” in item first refer correctly to the house alone, is rendered impossible by the next clause which by express mention of the organ shows conclusively that the testator did not mean the house alone; the next which refers “ it ” to both house and contents, is opposed to the clear general intent to divide the farm between Peter and George, and makes no better grammar than the third which refers “it” to the contents of the house only, and is supported by the general intent and also by the specific provisions in regard to the widow and George’s care of her. We are of opinion that this last presents the least difficulty, and must be adopted. The house was the widow’s for life, and at her death it went to George in fee, while its contents went to the daughters.

Judgment affirmed.