STORY, Circuit Justice.
In the construction of wills the cardinal rule is, to follow the intention of the testator, as it is to be collected from the whole provisions of the particular will. If the testator uses words, which have received a technical sense, that sense is presumed to be his own, unless a different meaning is fairly dedueible from the context. In that event, the technical sense will bend to the apparent intention. If there are two intentions on the face of the will, one of which is general and consistent with the rules of law; and another special and inconsistent with the rales of law, the latter yields to the former, and if necessary to give effect to the will, may be rejected altogether. The struggle in all such cases is to accomplish the real objects of the testator, so far as they can be accomplished, consistently with the principles of law; but in no case to exceed his intention fairly deducible from the very words of the will.
The interpretation of the present will Is certainly not unattended with difficulty; though I confess, that until I had examined the.ingenious arguments urged at the bar, I had not supposed, that there was so much matter for controversy. The testator manifestly intended to dispose of his whole estate, real and personal. After providing for the payment of his debts and funeral charges, he bequeaths the residue to his wife, during her life, “to be improved for her benefit, and providing for his children, relying,” as he says, “on her goodness and discretion in that particular, as she may think proper.” In case his wife should not live to see his youngest son, John Spaulding, arrive to the age of 21 years, he bequeathed the same estate to his daughter Amy, to be by her improved and as a home for his son John, as an equivalent for. his said son’s bringing up, till he arrives to the age of 21 years. Then follows this clause: “At which time my will is, that all my then estate, real as well as personal, shall be divided amongst all my children, Amy, Edward, and John, equally, share and share alike, to them and their heirs for ever, or to the surviving children, in case of death to either of them, leaving no issue.” Now it is clear, that the estate to his daughter, Amy, was to take effect only upon the contingency, that his wife died during John’s minority. And the question first meeting us in the cause is, whether the remainder of the clause is dependent upon that event, or whether it applies to the whole of the preceding provisions of the will, and rides over all of them. In other words, is the estate to be divided when John arrives of age, although the wife is .then living; or is it to be divided only in case of her death before that period? The former is the construction contended for by the plaintiff; the latter is contended for by the defendants. If the defendants’ construction is adopted, then if the will had stopped here, there would plainly be no devise whatsoever of the remainder after the wife’s death, in the events which have happened. We shall presently see, whether the devise over to her helps the defect. But supposing this to be the only clause, which contains any devise to the children, the latter will take nothing under the will, unless this clause is construed to apply to a division of the whole estate (subject to the wife’s life estate) on John’s arriving at 21 years of age. One doubt arising upon this construction is, that the clause applies as well to personal as real estate; and it may be asked, how could the personal estate be divided during the wife’s life, without interfering with her right of enjoyment? Perhaps this objection is not in its own nature insuperable. Testators do not ordinarily distinguish between personal and real estate, and generally suppose them susceptible of the same modifications as to enjoyment and right. It is farther objected, that the clause is found in immediate connexion with a provision for the daughter, Amy, during John’s minority, and naturally flows from that. But that again is not decisive; for the testator may still have contemplated the same event (i. e. John’s arrival at age) as the period, at which his devises to his children should vest absolutely in them. It is asked, on the other side, and with great force, why the testator should not be presumed to intend a present vested interest in remainder in his children when they were all of age and capable of making a suitable division for their benefit, rather than to postpone all their [246]*246interest upon the contingency of their surviving his wife, and by such postponement lead to a preference of unborn issues over his own children? There is much weight in this suggestion. And it acquires additional force, if upon any other construction, the children are, by the terms of the will, left unprovided for, in case the wife should survive John’s coming of age. It would be strange, that the testator should so solicitously provide for a division of his estate among his children, if his wife died during John’s minority, and yet should leave them unprovided for, if she survived that period, notwithstanding her estate was limited to her own life. To argue such an intention, would be to suppose great want of forethought, or great capriciousness of purpose in the testator.
Let us see, then, whether the subsequent words of the will afford any light to aid us in the proper construction. They are as follows: “Further, should it so happen that all my said children should die, and leave no issue, and my wife survive them, then and in that particular my will and desire is, that the estate aforesaid be and remain hers in fee simple, to dispose of at her will and pleasure.” The event never happened. She did survive all the children; but she did not survive their issue. So that the devise over never toot effect to enlarge her life estate into a fee. Either, therefore, the remainder is intestate property, divisible among the heirs, and of course John toot one third; or the will has operated as an effectual devise of it to the children or their issue. Now this clause does not purport on its face to mate any devise whatsoever to the children. It is simply limited to a devise over to the wife, on their dying without leaving issue, in her lifetime. It presupposes that the children had taten the estate by some antecedent provision. If we suppose, that the prior clause, for the division of the estate on John’s arriving at 21, was intended to apply generally, there would be no difficulty in reconciling this devise over with such an intention in either of two ways. In the first place, the devise over might be construed to be limited to the case of all the children dying without leaving issue, before John’s arrival at age, in which case if any of the children or their issue should survive John’s arrival at age, they would take an absolute fee. Or, in the second place, it might be construed to extend to the case of all the children dying without issue, at any time during the life of the-wife, and then it would be an executory devise over, after a conditional fee in the children, determinable on that event; and in this view, it would have become absolute by the non-occurrence of the fact, which was to determine it. The clause itself is susceptible of either construction; and so construed, there is no interference with any express intention of the testator. But the defendants contend, (and it is vital to their success in the cause, that they should contend,) that the will completely disposed of the whole estate, and that it contains a devise to such of the children only, or their issue, as should survive the wife, in fee, and that such survivor-ship is indispensable to their title, and forms the contingency, on which it is to vest.
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STORY, Circuit Justice.
In the construction of wills the cardinal rule is, to follow the intention of the testator, as it is to be collected from the whole provisions of the particular will. If the testator uses words, which have received a technical sense, that sense is presumed to be his own, unless a different meaning is fairly dedueible from the context. In that event, the technical sense will bend to the apparent intention. If there are two intentions on the face of the will, one of which is general and consistent with the rules of law; and another special and inconsistent with the rales of law, the latter yields to the former, and if necessary to give effect to the will, may be rejected altogether. The struggle in all such cases is to accomplish the real objects of the testator, so far as they can be accomplished, consistently with the principles of law; but in no case to exceed his intention fairly deducible from the very words of the will.
The interpretation of the present will Is certainly not unattended with difficulty; though I confess, that until I had examined the.ingenious arguments urged at the bar, I had not supposed, that there was so much matter for controversy. The testator manifestly intended to dispose of his whole estate, real and personal. After providing for the payment of his debts and funeral charges, he bequeaths the residue to his wife, during her life, “to be improved for her benefit, and providing for his children, relying,” as he says, “on her goodness and discretion in that particular, as she may think proper.” In case his wife should not live to see his youngest son, John Spaulding, arrive to the age of 21 years, he bequeathed the same estate to his daughter Amy, to be by her improved and as a home for his son John, as an equivalent for. his said son’s bringing up, till he arrives to the age of 21 years. Then follows this clause: “At which time my will is, that all my then estate, real as well as personal, shall be divided amongst all my children, Amy, Edward, and John, equally, share and share alike, to them and their heirs for ever, or to the surviving children, in case of death to either of them, leaving no issue.” Now it is clear, that the estate to his daughter, Amy, was to take effect only upon the contingency, that his wife died during John’s minority. And the question first meeting us in the cause is, whether the remainder of the clause is dependent upon that event, or whether it applies to the whole of the preceding provisions of the will, and rides over all of them. In other words, is the estate to be divided when John arrives of age, although the wife is .then living; or is it to be divided only in case of her death before that period? The former is the construction contended for by the plaintiff; the latter is contended for by the defendants. If the defendants’ construction is adopted, then if the will had stopped here, there would plainly be no devise whatsoever of the remainder after the wife’s death, in the events which have happened. We shall presently see, whether the devise over to her helps the defect. But supposing this to be the only clause, which contains any devise to the children, the latter will take nothing under the will, unless this clause is construed to apply to a division of the whole estate (subject to the wife’s life estate) on John’s arriving at 21 years of age. One doubt arising upon this construction is, that the clause applies as well to personal as real estate; and it may be asked, how could the personal estate be divided during the wife’s life, without interfering with her right of enjoyment? Perhaps this objection is not in its own nature insuperable. Testators do not ordinarily distinguish between personal and real estate, and generally suppose them susceptible of the same modifications as to enjoyment and right. It is farther objected, that the clause is found in immediate connexion with a provision for the daughter, Amy, during John’s minority, and naturally flows from that. But that again is not decisive; for the testator may still have contemplated the same event (i. e. John’s arrival at age) as the period, at which his devises to his children should vest absolutely in them. It is asked, on the other side, and with great force, why the testator should not be presumed to intend a present vested interest in remainder in his children when they were all of age and capable of making a suitable division for their benefit, rather than to postpone all their [246]*246interest upon the contingency of their surviving his wife, and by such postponement lead to a preference of unborn issues over his own children? There is much weight in this suggestion. And it acquires additional force, if upon any other construction, the children are, by the terms of the will, left unprovided for, in case the wife should survive John’s coming of age. It would be strange, that the testator should so solicitously provide for a division of his estate among his children, if his wife died during John’s minority, and yet should leave them unprovided for, if she survived that period, notwithstanding her estate was limited to her own life. To argue such an intention, would be to suppose great want of forethought, or great capriciousness of purpose in the testator.
Let us see, then, whether the subsequent words of the will afford any light to aid us in the proper construction. They are as follows: “Further, should it so happen that all my said children should die, and leave no issue, and my wife survive them, then and in that particular my will and desire is, that the estate aforesaid be and remain hers in fee simple, to dispose of at her will and pleasure.” The event never happened. She did survive all the children; but she did not survive their issue. So that the devise over never toot effect to enlarge her life estate into a fee. Either, therefore, the remainder is intestate property, divisible among the heirs, and of course John toot one third; or the will has operated as an effectual devise of it to the children or their issue. Now this clause does not purport on its face to mate any devise whatsoever to the children. It is simply limited to a devise over to the wife, on their dying without leaving issue, in her lifetime. It presupposes that the children had taten the estate by some antecedent provision. If we suppose, that the prior clause, for the division of the estate on John’s arriving at 21, was intended to apply generally, there would be no difficulty in reconciling this devise over with such an intention in either of two ways. In the first place, the devise over might be construed to be limited to the case of all the children dying without leaving issue, before John’s arrival at age, in which case if any of the children or their issue should survive John’s arrival at age, they would take an absolute fee. Or, in the second place, it might be construed to extend to the case of all the children dying without issue, at any time during the life of the-wife, and then it would be an executory devise over, after a conditional fee in the children, determinable on that event; and in this view, it would have become absolute by the non-occurrence of the fact, which was to determine it. The clause itself is susceptible of either construction; and so construed, there is no interference with any express intention of the testator. But the defendants contend, (and it is vital to their success in the cause, that they should contend,) that the will completely disposed of the whole estate, and that it contains a devise to such of the children only, or their issue, as should survive the wife, in fee, and that such survivor-ship is indispensable to their title, and forms the contingency, on which it is to vest. Now, how is this construction made out? There is no clause in the will, expressly making such a provision. The whole argument of the defendant’s counsel rests on the ground, that the claus'i respecting the division of the estate is inapplicable to it. It must then be deduced, if at all, by implication from the terms of the devise over to the wife, in the event of her surviving the children and their issue. But the. terms of that devise are just as well satisfied by supposing the testator to have given all his children a vested fee, determinable upon her surviving them and their issue, as by supposing a contingent fee to them, to vest upon the happening of the same event. If, therefore, the case stands equal, how can the court raise any such estate by implication, unless upon the most arbitrary conjecture? But does it stand equal? In the first place, the law generally leans against creating contingent estates, when the words of the will may be satisfied by considering them vested. In the next place, in order to arrive at this conclusion, we must suppose an intention in the testator to deprive his immediate offspring of all present fixed interest in his estate, (however important such an interest might be to their comfort,) when it is plain from other parts of his will, that they were all • objects of his affection and bountjr. We must suppose, that he deliberately intended to give them a mere contingent interest, and for this purpose to postpone them, as the event might be, and indeed was, in favor of unborn issue, towards whom he could not be presumed to feel any peculiar affection. Such an intention is neither natural nor wise; and a court must go very far in making presumptions, to justify itself in deducing it from such general words. I confess myself not bold enough to undertake it. The prior devise of a life estate to the wife, certainly affords no argument to support it; for that merely points to the order, in which the property is to be enjoyed in possession, and not to the period when it shall vest in right. Let- us suppose for a moment the intermediate devise (as to the division of the estate on John’s arrival at 21,) struck out of the will, as a view most favorable to the defendants; how then would the case stand? There would be a devise to the wife for life, and a devise over to her in fee, in case she should survive all the children and their issue. That is the very form, which the words of the will must assume, as the defendants’ argument connects them. Now, we see at once, that is no devise whatsoever in terms to the children. And yet, [247]*247no one can read the words without feeling, that- they are the primary objects of his bounty, after the wife’s life estate is spent. If after the devise to his wife for life, the testator had added the words, “and after her death the remainder to my three children and their heirs,” and then the devise over had followed, could there be a legal doubt, that the court, upon acknowledged and settled principles, must have construed the remainder immediately to have vested in the children upon the testator’s death, subject to be defeated by the executory devise over taking effect? I presume not. If the court were driven to give a construction to the will upon the two clauses above-mentioned, drawn into such connexion, and to create an estate by implication in the children, I confess I know not what words more appropriate, or more exact to express such implication, could be used. But it would be sufficient for the present case to say, that the construction, which the defendants wish the court to give to the words of the will, is not in Its own nature more probable, or more consistent with any ascertained intention of the testator, than that before suggested.
If it were necessary to decide the case upon the very form of the provisions in the will my present judgment is, that one of two constructions ought to be adopted. 1st. That the clause as to the division of the estate, on John’s arrival at 21, should be construed to apply as well to the case of the wife being then alive, as of her being then dead; and in this view the devise over ought to be restrained to all the children’s dying during John’s minority, without leaving issue, ur, 2dly, putting that clause aside, that the children should be deemed to take a vested estate in fee in remainder after the wife’s life estate, with an executory devise over to the wife, if she survived them and their issue. Upon either construction the plaintiff would be entitled to recover. But if these constructions are to be rejected, as not fully supported by any reasonable implication upon the terms of the will, I am most clearly of opinion, that the construction set up by the defendants is indefensible in point of law, and rests upon a far more unsatisfactory and infirm foundation. The consequence, then, must be, from the very doubt of the testator’s intention, and from the omission to provide for the case, which has happened, that the estate must be deemed intestate; and then the plaintiff is entitled to recover the one third, which was John’s distributable share.
In either view my opinion is, that upon the facts agreed, judgment ought to be entered for the plaintiff. The district judge concurs in this opinion, and therefore judgment must be entered for the plaintiff for one third of the demanded premises.