Altdorfer's Estate

Opinion by

Mr. Justice Mitchell,

While the repetition by á testator of the same words or phrases to which he has previously given a definite meaning will prima facie be presumed to carry the same meaning in the second use, yet this presumption must give way to any indication of a different intent on the part of the testator. In the construction of this will, complicated as it is by a want of familiarity with the accurate use of the English language, we cannot ignore a diversity in the circumstances and the apparent intent under which the similar words were used.

After leaving his whole estate to his wife, adding “ she has helped to make it, therefore she shall enjoy it” the testator wrote, “it is my wish .... that my nearest relatives, brother, sister or their children, may they yet live at Kircheim (clearly meaning if they should be living), .... shall inherit one-half of all the estate my wife may possess at the time of her death .... the other half shall come to the nearest relatives of my wife or if she wants to make a will to any one else she may name she can dispose of one-half of all she may leave just as she pleases.” The prominent thought here is that the testator considered the estate as belonging equitably at least to himself and to the wife who had helped him make it and intended that it should finally go equally to the nearest relatives of each. As to his own share he names definitely the relatives, brother and sister, and establishes the right of representation among them by adding “ or their children.” As to these the devise is absolute, and except for what she may have consumed during her life he asserts his wish positively, it is beyond her control by will or otherwise. He defines not only the property he is disposing of but also the persons who are to take it.

As to her share, however, the conditions are different. She has an unlimited power of disposition of it by will, and her relatives get nothing except through her gift or her intestacy. Testator had in mind no special or defined persons who should ultimately take, but only the general idea that they should be such as would represent her. He therefore used-only the general words “nearest relatives” without defining them- as he had in his own case. Under such circumstances the presumption is that he meant such relatives as should properly be defined as nearest. To give effect to this word it was held in White’s Estate, 27 W. N. C. 253, that sisters excluded nephews and nieces, citing and following Locke v. Locke, 45 N. J. Eq. 97, and the decision has been generally acquiesced in.

Decree reversed and partition directed to be made on the principles of this opinion.