Leonard, C.
The title which the parties to this action claim to derive under the last will of William Spier demands the judicial construction of a single paragraph. It is as follows, viz.:
“
I will that the above described premises be for the use of my daughter, Polly Guernsey, during her natural life, then to be equally divided amongst her now surviving children, or any of them that may be alive at her decease, or the heirs of any that may be dead at the time of executing this my last will.”
The whole instrument indicates unmistakably that it was prepared by a person who had but little acquaintance with
the correct use of legal terms relating to his subject, and disregarded the grammatical construction of his sentences, and the arrangement of language to convey his ideas with certainty. The intention of the testator is not, however, in the least degree doubtful to my mind. It is his clear intention that his daughter Polly shall enjoy the property for her life, remainder to her children, with the right of representation in case any of them died before her. It will he unprofitable to discuss the rights of children of Polly Guernsey, born after the publication of the will, because none were born. She had four children at that time—two sons and two daughters—and none were born to her afterward. One of her sons, Peter B., died in the lifetime of the testator, and before he made the codicil, leaving issue, two children, one of whom, a son, is still living; the other died in infancy.
. One of the daughters of Polly Guernsey married James Thompson, and died in the lifetime of her mother, leaving lawful issue, seven children, all of whom survived Polly Guernsey, their grandmother, and are parties to this action, claiming one-third of the premises devised by the will of William Spier, as the representatives of their mother, Polly Thompson. William G. Guernsey and Lavinia Gurnsey, a son and daughter, who only of the said four children of Polly Guernsey were living at the time of her death, claim the whole estate under the will of William Spier, to the exclusion of the children of their deceased brother, Peter B., and of their sister, Mrs. Thompson. They insist that the last member of the sentence quoted above from the will must be treated as senseless and nugatory, or that, if retained, the word “ executing,” in that sentence, must be held to relate to the time of signing the will by the testator. There is authority for rejecting words and even sentences from a will where the plain intention of the testator is thereby promoted or carried into effect. The chief and only object of judicial construction, when applied to a will, is to ascertain and determine, the intention of the testator. It is desirable to give effect to the language rather than to reject or annul
it. The law favors a construction which will not tend to the disinheriting of heirs, unless the intention to do so is clearly expressed.
There is no reason apparent from the facts proven in this case, nor from the expressions and meaning of the language of the testator, that he intended to disinherit the children of any deceased son or daughter of Polly Guernsey. It will require a very artificial rendering of the will to arrive at any such conclusion. That meaning is to be preferred, if the case were balanced, which inclines to the side of the inheritance of the children of a deceased child. We can see no reason why the testator should prefer William G. and Lavinia to Peter B. and Polly, and them respective children in case of their death.
We unhesitatingly pronounce, in this case, against the application of the rule for annulling the last member of the sentence referred to, not only for reasons before mentioned; but for others, hereinafter to be mentioned, which attribute to that sentence an important sense and meaning.
The learned court from which this appeal has been taken arrived at the intention of fhe testator, or the expression of that intention, by changing the word “or” to “and,” in the last two members of the sentence under examination. This rule of construction is also well sanctioned by authority, where the intent is not doubtful. There is no actual necessity for the alteration of any word. The same result will follow by repeating the word “ amongst ” after the first “ or,” as it is plainly there to be understood or implied, and holding that the word “ executing,” in the last- member of the sentence, refers to the time when the will takes effect, by vesting the estate in possession, at the death of Polly Guernsey. The sentence, so amended, after the creation of the life estate, will be read as follows: “ Then to be equally divided amongst her now surviving children, or
‘ amongst
’ any of them that may be alive at her decease, or the heirs of any that may be dead at the time of executing this my last will.” The last “ or,” here used, puts “the heirs of any that may be dead”
as an alternative in the place of deceased children. The persons who are to take the remainder in possession are children, or the heirs of deceased children. This construction gives the last “or” the same signification that “and” would have, if there used. The testator has used the word “heirs” in the sense of children. He has not reflected that this word might include persons other than children, and the result has not disappointed his expectation. The heirs of his granddaughter,. Polly Thompson, have proved to be her children.
Whether the sentence be read as above indicated, or by changing the word “ or ” to “ and,” it will conform to the undoubted intention of the testator, that the children of his daughter, Polly, should take, if living at her decease, or if any of them were then dead, leaving children surviving, that the children should stand in the place of the parent. The testator has employed the word “ executing ” in a like common, or vulgar sense as he has the word “ heirs.” He refers to the time when the estate vested in fee by the death of his daughter,
Polly. The will then became fully
executed as to these heirs and this property. If the word “ executing ” be held to refer to the date or time of signing, it would be singularly inappropriate and unnatural, for Polly Guernsey’s children were then all living, and none of them were married or had any children. The husband of Polly Guernsey was then living, and might have taken as hem of a deceased child, under such a construction. It cannot be supposed that the testator had any such intention. It is possible that the testator ignorantly believed that his executors had something to do about “ executing ” the will, as to this land as well as to the “ movables ” of his estate, and that he referred to the time of the execution of them duties. Whether it refers to the time of the death of the testator, or of Mrs. Guernsey, as the time of executing the will, it is equally effectual to save the inheritance of the mother’s share to the children of Polly Thompson.
The Supreme Court held that the tenants who erected buildings on the land were not entitled to any compensation
therefor; and this is also alleged to be error. The buildings were constructed during the life estate of Mrs. Guernsey, with full knowledge of the limited nature of her title.
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Leonard, C.
The title which the parties to this action claim to derive under the last will of William Spier demands the judicial construction of a single paragraph. It is as follows, viz.:
“
I will that the above described premises be for the use of my daughter, Polly Guernsey, during her natural life, then to be equally divided amongst her now surviving children, or any of them that may be alive at her decease, or the heirs of any that may be dead at the time of executing this my last will.”
The whole instrument indicates unmistakably that it was prepared by a person who had but little acquaintance with
the correct use of legal terms relating to his subject, and disregarded the grammatical construction of his sentences, and the arrangement of language to convey his ideas with certainty. The intention of the testator is not, however, in the least degree doubtful to my mind. It is his clear intention that his daughter Polly shall enjoy the property for her life, remainder to her children, with the right of representation in case any of them died before her. It will he unprofitable to discuss the rights of children of Polly Guernsey, born after the publication of the will, because none were born. She had four children at that time—two sons and two daughters—and none were born to her afterward. One of her sons, Peter B., died in the lifetime of the testator, and before he made the codicil, leaving issue, two children, one of whom, a son, is still living; the other died in infancy.
. One of the daughters of Polly Guernsey married James Thompson, and died in the lifetime of her mother, leaving lawful issue, seven children, all of whom survived Polly Guernsey, their grandmother, and are parties to this action, claiming one-third of the premises devised by the will of William Spier, as the representatives of their mother, Polly Thompson. William G. Guernsey and Lavinia Gurnsey, a son and daughter, who only of the said four children of Polly Guernsey were living at the time of her death, claim the whole estate under the will of William Spier, to the exclusion of the children of their deceased brother, Peter B., and of their sister, Mrs. Thompson. They insist that the last member of the sentence quoted above from the will must be treated as senseless and nugatory, or that, if retained, the word “ executing,” in that sentence, must be held to relate to the time of signing the will by the testator. There is authority for rejecting words and even sentences from a will where the plain intention of the testator is thereby promoted or carried into effect. The chief and only object of judicial construction, when applied to a will, is to ascertain and determine, the intention of the testator. It is desirable to give effect to the language rather than to reject or annul
it. The law favors a construction which will not tend to the disinheriting of heirs, unless the intention to do so is clearly expressed.
There is no reason apparent from the facts proven in this case, nor from the expressions and meaning of the language of the testator, that he intended to disinherit the children of any deceased son or daughter of Polly Guernsey. It will require a very artificial rendering of the will to arrive at any such conclusion. That meaning is to be preferred, if the case were balanced, which inclines to the side of the inheritance of the children of a deceased child. We can see no reason why the testator should prefer William G. and Lavinia to Peter B. and Polly, and them respective children in case of their death.
We unhesitatingly pronounce, in this case, against the application of the rule for annulling the last member of the sentence referred to, not only for reasons before mentioned; but for others, hereinafter to be mentioned, which attribute to that sentence an important sense and meaning.
The learned court from which this appeal has been taken arrived at the intention of fhe testator, or the expression of that intention, by changing the word “or” to “and,” in the last two members of the sentence under examination. This rule of construction is also well sanctioned by authority, where the intent is not doubtful. There is no actual necessity for the alteration of any word. The same result will follow by repeating the word “ amongst ” after the first “ or,” as it is plainly there to be understood or implied, and holding that the word “ executing,” in the last- member of the sentence, refers to the time when the will takes effect, by vesting the estate in possession, at the death of Polly Guernsey. The sentence, so amended, after the creation of the life estate, will be read as follows: “ Then to be equally divided amongst her now surviving children, or
‘ amongst
’ any of them that may be alive at her decease, or the heirs of any that may be dead at the time of executing this my last will.” The last “ or,” here used, puts “the heirs of any that may be dead”
as an alternative in the place of deceased children. The persons who are to take the remainder in possession are children, or the heirs of deceased children. This construction gives the last “or” the same signification that “and” would have, if there used. The testator has used the word “heirs” in the sense of children. He has not reflected that this word might include persons other than children, and the result has not disappointed his expectation. The heirs of his granddaughter,. Polly Thompson, have proved to be her children.
Whether the sentence be read as above indicated, or by changing the word “ or ” to “ and,” it will conform to the undoubted intention of the testator, that the children of his daughter, Polly, should take, if living at her decease, or if any of them were then dead, leaving children surviving, that the children should stand in the place of the parent. The testator has employed the word “ executing ” in a like common, or vulgar sense as he has the word “ heirs.” He refers to the time when the estate vested in fee by the death of his daughter,
Polly. The will then became fully
executed as to these heirs and this property. If the word “ executing ” be held to refer to the date or time of signing, it would be singularly inappropriate and unnatural, for Polly Guernsey’s children were then all living, and none of them were married or had any children. The husband of Polly Guernsey was then living, and might have taken as hem of a deceased child, under such a construction. It cannot be supposed that the testator had any such intention. It is possible that the testator ignorantly believed that his executors had something to do about “ executing ” the will, as to this land as well as to the “ movables ” of his estate, and that he referred to the time of the execution of them duties. Whether it refers to the time of the death of the testator, or of Mrs. Guernsey, as the time of executing the will, it is equally effectual to save the inheritance of the mother’s share to the children of Polly Thompson.
The Supreme Court held that the tenants who erected buildings on the land were not entitled to any compensation
therefor; and this is also alleged to be error. The buildings were constructed during the life estate of Mrs. Guernsey, with full knowledge of the limited nature of her title. It has not been claimed that they were erected under any mistake as to the extent of her title or right. The consent of the others, having estates in remainder, was not asked, nor were any of them invited to contribute or join in the enterprise. The buildings were erected as a venture. It was hoped that they would return the investment with a profit; and there is nothing to indicate that William G. Guernsey or the Thompsons relied upon any moral or legal obligation that any one of their co-tenants should ever pay any portion of their expenditures.
The case of
Green
v.
Putnam
(1 Barb. S. C. R., 500) is the strongest authority for the appellants, and the most relied on by them to sustain their claim for compensation. The claim was allowed in that case, as an equitable lien, to be adjusted by the court in partition, on very good grounds. The plaintiff had been consulted, and had consented to the construction of a smaller building, and, when it was ascertained that a larger one was being constructed, objected. The lien in favor of the party who expended the money, or his assignee or grantee, was limited to the sum necessary for erecting the smaller building, and no relief was granted for the amount expended without the plaintiff’s consent. As to such expenditure, it was a venture; it might be successful, or otherwise, but it gave no right to exact a reimbursement, or to claim a lien upon the share of the other parties. In
Putnam,
v.
Ritchie
(6 Paige, 390), the building was erected under a mistake as to the title.
In re Heller
(3 Paige, 199), the court exercised the equitable power of chancery over the estate of an idiot, to pay the damage sustained by his co-tenant for the wanton destruction of a building belonging to them in common. In
Conklin
v.
Conklin
(3 Sandf. Ch. R., 64), the improvements were made under a mistake as to the title.
There was no consent, mistake or other equitable ground in this case for relieving a party who made his investment
with full knowledge of the facts, voluntarily, and without any inducements offered by other co-tenants. Had the appellants offered to share their rents, upon being paid a due proportion of the value of the improvements after the termination of the life estate, it might have afforded a better ground to claim compensation. The appellants are not within the reason of any of the adjudged cases, where relief has been granted in partition for money expended in improvements by one of several tenants in common. If the land has been really enhanced in value by the improvements, the appellants are in better plight than strangers, as they will receive their
pro rata
share of the increased proceeds of the sale. The owner cannot be called upon to afford any indemnity or compensation for money expended by a stranger for improvements, if he had full knowledge of the risk he was encountering when they were made.
¥m. Guernsey erected the buildings, notas himself having any interest in the property, but on a special agreement with the tenant for life. The arrangement was a favorable one to him, and he received full compensation for his expenditures. When the life tenant died, the property as it stood, with the buildings on it, belonged to the heirs. He continued to occupy, knowing all the facts, and must pay the full value of his occupation.
- The remedy for rents, by one tenent in common against another under the statute, by an action, is cumulative, and does not bar the equitable adjustment of them on a partition in equity. (1 R. S., 750, § 9.) The rents, on a partition, are a lien upon the shares or interest of any co-tenants from whom they may be due.
The objection that D. Wilmot Scott has been improperly added as a party to the action, as administrator of his deceased wife, who was one of the children of Polly Thompson, is not well taken. He, as administrator, is entitled to receive the rents due to his wife at the time of her death, and is, for that reason, a proper party to the accounting. It is not necessary
that he should he turned over to an action under the statute for their recovery.
It appears from the complications arising from infancy, minuteness of some of the shares, difference in value of the lands, and the liens for rent on the shares of some of the parties, that an actual partition could not be made without prejudice to the rights of some of them. The decree provides for sales in small parcels, which will enable any of the parties to purchase to the extent of their respective shares or interest in the whole proceeds. There is no error in this respect. It must be presumed also, that the court below exercised its best discretion in providing for a sale, instead of an actual partition, which we ought not to overrule unless the error is clear. The judgment should be affirmed with costs.
All concur.
Judgment affirmed.