By the Court, Bacon, J.
The result of this suit, and the propriety of the judgment rendered therein, depend entirely upon the construction which is to be given to the will of Ger-sham Skinner. Both the learned and capable referees by whom this cause has been tried, have given to it a construction which deprives a needy daughter who lived with the decedent on terms of entire friendliness and even affection, and . 6 ' who resided with and took care of him in his last illness,- of [377]*377all interest in his estate, and of all share in his ample property, except to the extent of one two-year old heifer, and passes it over literally “ to heirs he knew not whom,” since the person here claiming was not' horn until more than a year after the making of the will. Of such a construction it may be susceptible ; but to warrant it, the language ought to be pretty clear and explicit, and the circumstances surrounding the transaction such as to lead very strongly to the same conclusion.
In the construction of a will it need hardly be said, since the rule is an elementary one, that the intention of the testator is to govern, if consistent with the rules of law. In arriving at the intention it is also to be remarked, that it is to be ascertained from the whole will taken together and not from the language of any particular clause or provision severed from its connection and taken by itself; and in regard to the words a testator has employed to convey his meaning, they must be presumed to be used in their ustial and primary sense, unless from the context of the will it appears that the testator must have used them in some other or secondary sense. Where the language employed is obscure or ambiguoús, and words are made use of in one connection with a meaning apparently at variance with the sense of the same words in another clause, extrinsic circumstances may be called to our aid in endeavoring to arrive at the true intention of the testator; and among these the situation of the testator’s property, and the condition of his family, and especially of the apparent beneficiaries of his will, are to be considered,, and are prominent land-marks to guide the court in the duty of interpretation.
A glance at the will in question shows it to be not only inartificially, but most clumsily drawn. It was prepared, as the testimony discloses, by an old man by the name of John Jones, who was evidently not only a very unpracticed scrivener, hut very poorly versed in the use of language as a medium of conveying ideas. Several of the provisions of the will, also, are entirely contradictory to each other; and it does not from the manner of its construction appear to have been the result of [378]*378much preconsideration, but to have been dictated if not written “ cúrrente calamo.” Thus, in the very first clause, the testator gives his wife one third of his farm and of his barn, and then orders his son to provide her fuel during her lifetime in lieu of dower. He gives her §30 in money, but before he finishes the clause he orders that §15 be paid to her in lieu of the §30. He directs in this clause that Isaac Skinner shall have an equal share with his daughters in his lands in Verona, instead of those in Columbia; and in the third clause of the will he directs that the same Isaac Skinner shall have an equal share with his daughters in his aforesaid lands, “ except those in the town of Verona.” Thus, while seeming in both instances to be carefully looking after Isaac’s interests, totally cutting him off from any share in his estate.
In the use of the word “ heirs,” throughout the will, the like indefiniteness and uncertainty prevails. In one part of the will it clearly means the1 .testator’s own children; in another it is used to designate the issue of his children, and in another it may mean any person, no matter in what relation they stood to the testator, who might by the rules of law inherit from his children.
There are some other incongruities in the will which tend to obscure its meaning, but which need not be particularly specified) since enough already appears to show that this is a case where the extrinsic and surrounding circumstances of the parties are very properly invoked to aid us in its construction.
The testator, besides his son, the defendant, who was his principal devisee, had four married daughters at the time of the making of his will, and one daughter had deceased, leaving several children;. For all these the will indicates that he intended to make provision; the children of his deceased daughter representing their parent, and receiving the same portion with the living daughters of the testator, except that their shares were not to be paid until they should respectively arrive at age. But among those daughters there was a remarkable discrimination. The three living daughters, Margaret [379]*379Hess, Mary Hess and Amy Hess, and the children of Hannah Myers, his deceased daughter, were to be paid the sum of $20 at certain periods after the testator’s death, but to his daughter Oaty Bloodgood the sum of $40 was to be paid at the same periods. They were all to share equally in his lands in Verona and Columbia, except that portion which had been devised to the defendant, as well as in his personal property not otherwise disposed of, and over and above what was bestowed upon the others, by a separate clause, a heifer was bequeathed to Caty Bloodgood. These discriminations are, it is true, slight in amount, hut they seem to indicate very clearly that the daughter Caty was selected as an object, to some extent at least, of a benefaction beyond her sisters. The key to this, and which will help Us to unlock the other passages of the will, will doubtless he found in the condition of Caty in her social relations, and as a member of her father’s household. In the latter capacity, as has already been remarked, she was on terms of kindness and affection with her aged father, and aided in nursing and attending upon him in his last illness and until his death, which occurred in less than two years after making the will in question. She Was married to one Samuel Bloodgood, while living at her father’s house, and continued to reside there with him until the death of Bloodgood, which occurred a little over two years after the marriage, and between the making of the will and the death of the testator. Very soon after the marriage with Bloodgood, abd some time before the date of the will, Bloodgood exhibited such evidence of insanity as to occasion great anxiety on the part of his wife and of the family ■ so that in the language of one of the witnesses, after an incident which he describes as occurring before the time the will hears date, “ we had to watch him close, had to hide knives abd forks to keep him from destroying himself and family.” This state of things continued, and excited continual alarm, until in the month of July, 1823, he evaded the watch which had been kept upon him, and terminated his life by violence. Such a state of things as this would [380]*380naturally beget a desire on the part of a kind father to favor his unfortunate daughter, thus haunted with the perpetual apparition of a “ skeleton in her house,” and to put his intended bounty in such a position that it would most benefit her, and any family she might leave, and not be subjected to the power or caprice of an insane man.
With this state of things in view, the language of the will becomes comparatively plain, and the interpretation, to my mind, is quite obvious.
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By the Court, Bacon, J.
The result of this suit, and the propriety of the judgment rendered therein, depend entirely upon the construction which is to be given to the will of Ger-sham Skinner. Both the learned and capable referees by whom this cause has been tried, have given to it a construction which deprives a needy daughter who lived with the decedent on terms of entire friendliness and even affection, and . 6 ' who resided with and took care of him in his last illness,- of [377]*377all interest in his estate, and of all share in his ample property, except to the extent of one two-year old heifer, and passes it over literally “ to heirs he knew not whom,” since the person here claiming was not' horn until more than a year after the making of the will. Of such a construction it may be susceptible ; but to warrant it, the language ought to be pretty clear and explicit, and the circumstances surrounding the transaction such as to lead very strongly to the same conclusion.
In the construction of a will it need hardly be said, since the rule is an elementary one, that the intention of the testator is to govern, if consistent with the rules of law. In arriving at the intention it is also to be remarked, that it is to be ascertained from the whole will taken together and not from the language of any particular clause or provision severed from its connection and taken by itself; and in regard to the words a testator has employed to convey his meaning, they must be presumed to be used in their ustial and primary sense, unless from the context of the will it appears that the testator must have used them in some other or secondary sense. Where the language employed is obscure or ambiguoús, and words are made use of in one connection with a meaning apparently at variance with the sense of the same words in another clause, extrinsic circumstances may be called to our aid in endeavoring to arrive at the true intention of the testator; and among these the situation of the testator’s property, and the condition of his family, and especially of the apparent beneficiaries of his will, are to be considered,, and are prominent land-marks to guide the court in the duty of interpretation.
A glance at the will in question shows it to be not only inartificially, but most clumsily drawn. It was prepared, as the testimony discloses, by an old man by the name of John Jones, who was evidently not only a very unpracticed scrivener, hut very poorly versed in the use of language as a medium of conveying ideas. Several of the provisions of the will, also, are entirely contradictory to each other; and it does not from the manner of its construction appear to have been the result of [378]*378much preconsideration, but to have been dictated if not written “ cúrrente calamo.” Thus, in the very first clause, the testator gives his wife one third of his farm and of his barn, and then orders his son to provide her fuel during her lifetime in lieu of dower. He gives her §30 in money, but before he finishes the clause he orders that §15 be paid to her in lieu of the §30. He directs in this clause that Isaac Skinner shall have an equal share with his daughters in his lands in Verona, instead of those in Columbia; and in the third clause of the will he directs that the same Isaac Skinner shall have an equal share with his daughters in his aforesaid lands, “ except those in the town of Verona.” Thus, while seeming in both instances to be carefully looking after Isaac’s interests, totally cutting him off from any share in his estate.
In the use of the word “ heirs,” throughout the will, the like indefiniteness and uncertainty prevails. In one part of the will it clearly means the1 .testator’s own children; in another it is used to designate the issue of his children, and in another it may mean any person, no matter in what relation they stood to the testator, who might by the rules of law inherit from his children.
There are some other incongruities in the will which tend to obscure its meaning, but which need not be particularly specified) since enough already appears to show that this is a case where the extrinsic and surrounding circumstances of the parties are very properly invoked to aid us in its construction.
The testator, besides his son, the defendant, who was his principal devisee, had four married daughters at the time of the making of his will, and one daughter had deceased, leaving several children;. For all these the will indicates that he intended to make provision; the children of his deceased daughter representing their parent, and receiving the same portion with the living daughters of the testator, except that their shares were not to be paid until they should respectively arrive at age. But among those daughters there was a remarkable discrimination. The three living daughters, Margaret [379]*379Hess, Mary Hess and Amy Hess, and the children of Hannah Myers, his deceased daughter, were to be paid the sum of $20 at certain periods after the testator’s death, but to his daughter Oaty Bloodgood the sum of $40 was to be paid at the same periods. They were all to share equally in his lands in Verona and Columbia, except that portion which had been devised to the defendant, as well as in his personal property not otherwise disposed of, and over and above what was bestowed upon the others, by a separate clause, a heifer was bequeathed to Caty Bloodgood. These discriminations are, it is true, slight in amount, hut they seem to indicate very clearly that the daughter Caty was selected as an object, to some extent at least, of a benefaction beyond her sisters. The key to this, and which will help Us to unlock the other passages of the will, will doubtless he found in the condition of Caty in her social relations, and as a member of her father’s household. In the latter capacity, as has already been remarked, she was on terms of kindness and affection with her aged father, and aided in nursing and attending upon him in his last illness and until his death, which occurred in less than two years after making the will in question. She Was married to one Samuel Bloodgood, while living at her father’s house, and continued to reside there with him until the death of Bloodgood, which occurred a little over two years after the marriage, and between the making of the will and the death of the testator. Very soon after the marriage with Bloodgood, abd some time before the date of the will, Bloodgood exhibited such evidence of insanity as to occasion great anxiety on the part of his wife and of the family ■ so that in the language of one of the witnesses, after an incident which he describes as occurring before the time the will hears date, “ we had to watch him close, had to hide knives abd forks to keep him from destroying himself and family.” This state of things continued, and excited continual alarm, until in the month of July, 1823, he evaded the watch which had been kept upon him, and terminated his life by violence. Such a state of things as this would [380]*380naturally beget a desire on the part of a kind father to favor his unfortunate daughter, thus haunted with the perpetual apparition of a “ skeleton in her house,” and to put his intended bounty in such a position that it would most benefit her, and any family she might leave, and not be subjected to the power or caprice of an insane man.
With this state of things in view, the language of the will becomes comparatively plain, and the interpretation, to my mind, is quite obvious. If the construction for which the plaintiff contended is to prevail, the daughter whose condition demanded the most sympathy, and whose wants required the most aid, is to be much worse off than her sisters who do not appear to have been in any particular necessity, nor to have been objects of special favor. What reason can be given to authorize us to conclude that a father should thus discriminate, not in favor of but against a dutiful daughter, whose condition was more precarious than that of her sisters, and cut her off in her own person from any share in his estate ? To warrant this the language should be clear and emphatic, leaving no room for any other construction-.
But the words of this will not only do not require this unnatural construction, but are entirely consistent with the interpretation which all the parties had given to them until this suit was instituted, and under which they have acted for more than thirty' years.
As to the legacy of $40, the language used is the same as that employed in the bequest to the other daughters, of their legacies of $20 each. It is, “ I order John Skinner to pay to my several daughters as hereinafter named as follows.” Then follow the bequests to Margaret Hess, or her heirs, the sum of $20, one half in a year and six months, and the remaining half in two years and six months from his decease; “unto Caty Bloodgood the stun of $‘40, to be paid at the times aforesaid ;” and then it is added, “ which I order my executors to dispose of as they shall see best for the heirs of said Caty.” The object of this limitation, if such it can be called, was [381]*381obviously to keep the money from falling into the hands of Bloodgood, and to insure its expenditure for the benefit of Caty and her family. If it was best for the family that it should be paid at once to Caty, such payment might be, and indeed was, ordered to be made, the only object being to give the executor a check, if necessary, upon its disbursement. The same limitation occurs in the third clause, devising to his daughters his real estate; and I am persuaded it was to secure the same end, having the like circumstances in view.
[Onondaga General, Term,
October 4, 1859.
The words of conveyance of the estate are precisely the same in reference to all the daughters. If Caty takes no estate, they take none. But this has not been pretended, and cannot be, with any show of plausibility. The subsequent direction as to a sale and division of the proceeds of the land, would not affect the question of the vesting of the estate. That was a matter left to the discretion of the executors; but if they sold, the share of Caty was to be applied for the benefit of the heirs of Caty, “ as they should think best.” If, in their judgment, it was for the benefit of the heirs to pay it to Caty, they were at liberty to do so. In point of fact, as the case discloses, the whole amount which the share of Caty in the Verona lands produced, was paid over to the plaintiffs in 1844, so that the instruction in the will would appear to have been strictly complied with. But whether it has or not, is not at all important in this suit. If the defendant has not fairly and honestly discharged his trust, he may be called to account by Caty Bloodgood, who is still living, and is the proper if not the only party who can be heard on that subject. This suit, and the report of the referee, has, in my judgment, proceeded upon a radical misconstruction of the will, giving to the plaintiffs rights and remedies to which they are in no respect entitled.
The result is that the judgment must he set aside and a new trial granted, with costs to abide the event.
Pratt, Bacon, W. F. Allen and Mullin, Justices.]