Atkinson v. Staigg

The first question in this case is whether the widow takes in fee simple or for her life the estate in Pelham Street. The clause of the will under which the question arises is as follows: "To pay to my wife, Annie Staigg, the sum of ten thousand dollars for and during her natural life, and the house at Newport in Pelham Street." Undoubtedly an argument might be made to the effect that the two devises being contained in the same sentence are both affected by the limitation, although it is placed between the descriptions of the two pieces of property and not before or after both. We are, however, of opinion that under our statute the intention to give less than the whole estate of which the testator was seized must distinctly and with reasonable certainty appear from the terms of the will. Pub. Stat. R.I. cap. 182, § 5; Waterman v. Greene, 12 R.I. 483. We therefore decide that the widow takes a fee simple in the land in Pelham Street.

The second question is whether the widow is entitled to take the land exonerated from the mortgage. We decide that she is entitled to have the mortgage paid out of the estate of her husband not specifically devised, if that be sufficient, and that any deficiency must remain a charge on the devised land. Gould v. Winthrop, 5 R.I. 319.

The third question is whether the widow is entitled to dower out of certain land at Ochre Point, in Newport, which passes under the will as residuary estate. The will makes no declaration that the provision for the widow shall be taken in lieu of dower. There can be no doubt, if the will be construed as at common law or under our statutes, that the widow will be entitled to her dower in addition to the devise. But certain of the respondents claim that inasmuch as the will was made in this State, and the testator not altering his will, afterwards became domiciled in Massachusetts, and there died, the will must be construed according to the statutes of that commonwealth. So construed, the widow would not take dower, since the statute of Massachusetts provides that she "shall not be entitled to her dower in addition to the provisions of her deceased husband's will, unless such plainly appears by the will to have been the intention of the testator." The courts, indeed, have held that in the interpretation of the words of the will recourse may be had to the law of the place where the testator was domiciled at the time of making the will, and have in some cases gone to considerable lengths in the application of the rule. Brown's Trustees v.Brown, 4 W. Shaw, App. 28; Anstruther v. Chalmer, 2 Sim. 1; Harrison et al. v. Nixon, 9 Peters, 483. But we find no precedent for using, for the purposes of interpretation, the law of the place where the testator died; nor would the reason of the rule carry it to this extent. Since the purpose of interpretation is to ascertain what meaning was intended to be conveyed by the testator by the words which be saw fit to use, we certainly can look only to the meaning of these words according to the use in the place where he was domiciled when he made the will. We see no reason to infer an intention to change the meaning of those words from the fact that he afterwards changes his domicil without making any change in his will. The question of intention in wills relates solely to the meaning of the words employed as such meaning was intended at the time they were so employed. We cannot undertake to carry into effect intentions not expressed in the words of the will or fairly to be ascertained by the interpretation of those words.

We do not therefore find it necessary to consider how far we should be willing to follow the former decisions, if, indeed, they were intended to go to that extent, in importing by construction into a will of realty the law of any place other than that in which the land is situate.

We decide that the widow is entitled to dower in the land at Ochre Point.

The fourth question is whether the widow shall contribute her dower in the land at Ochre Point to pay off the mortgage on the land in Pelham Street. We decide that she is not bound so to contribute. Mathewson v. Smith, 1 R.I. 22.

Decree accordingly.