American Bible Soc. v. Holman

1 F. Cas. 621, 5 Reporter, 645

Opinion

NELSON, District Judge.

The intention of the testator must control in the construction of this will, and if possible be ascertained from the instrument itself. The bequests or legacies are specific, and in terms one half of the proceeds of the Wilcox mortgage was bequeathed to each legatee. The defence is that Holman, at the time of his death, having the title in fee to the lands by foreclosure, and there being no mortgage out of which “proceeds” could be realized, the bequests fail. The testator undoubtedly intended to make valid bequests, available for the purposes designated, and I am not required to give a narrow construction to the word “proceeds,” when a fair and reasonable acceptation of the word used would sustain the bequests. These are charities, and should be upheld if possible; and it is not a strained interpretation to make the word “proceeds” comprehend and embrace the avails of the mortgage in whatever form they existed at the time of the testator’s death; in fact, such was the intention as gathered from the language of the will. The testator did not give a sum of money and require the payment to be made out of the mortgage, nor did he bequeath a sum of money equal to the amount due upon the mortgage, but he gave the “proceeds” of the mortgage specifically, and whether a foreclosure had taken place or not is immaterial, as the “proceeds” of the mortgage existed at the testator’s death and could be identified. [Gardner v. Printup,] 2 Barb. 83; [Doe v. Tofield,] 11 East, 246; [Roe v. Pattison,] 16 East, 21. Decree for complainants.