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John Smith T., Plaintiff v. Robert Bell, Defendant 68 (1832)

handle is hein.slavery/ussccases0131 and id is 1 raw text is: 68 SUPREME COURT. JOHN SMITH T., PLAINTIFF V. ROBERT BELL, DEFENDANT, The will of B. G. contained the following clause: also, I give to my wife Elizabeth Goodwin, all my personal estate whatsoever and wheresoever, and of what nature, kind and quality ocvi-r, after payment of my debts, legacie.s and funeral expenses, which personal-estate I give ijd bequeath unto my said wife, Elizabeth Goodiin, to and for her own use and dispoal ahsolutely: the remainder after her decease to be for the use of the said Jesse Goodwin, th son of the testator. Jesse Goodwin took a vested remainder in the personal estate, which came into possession after the death of Elizabeth Goodwin. In this case it is impossible to mistake the intent. The testator unquestionably intended to make a present provision for his wife, and a future provision for his son. The intention can be defeated only by expunging or rendering to- tally inoperative the last clause of the will. In doing so, a long series of opi- nions, making the intention of the testator the polar star to guide in the cun- struction of wills, must be disregarded, because we find words which indicate an intention to permit the first taker to use part of the estate bequeathed The first and gieat rule in the exposition of wills, to which all rules must bend, is, that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law. This piinciple is generally asserted in the construction of every testamentary disposition. It is emphatically the will of the person who makes it, and is defined to be the legal declaration of a man's intentions, which he wills to be performed after his death. These in- tentions are to be collecte d from his words; and ought to be carried intoeffect if they be consistent with law. In the construction of ambiguous expressions, the situation of the parties may very properly be taken into view. The ties which connect the testator with his legatees, the affection subsisting between them, the motives which may reasonably be supposed to operate with him, and to influence him in the dis- position of his property, are all entitled to consideration in expounding doubt- ful words, and ascertaining the meaning in which the testator used them. The rule that a remainder may be limited after a life estate in personal property, is as well settled as any other principle of our law. The attempt to create such limitation is not opposed by the policy of the law, or by any of its rules. If the intention to create such limitation is manifested in a will, the courts will sustain it. It is stated in many cases that where there are two intents, inconsistent with each other, that which is primary will control that which is secondary. Notwithstanding the reasonableness and good sense of the general rule, that the intention shall prevail, it has been sometimes disregarded. If the testator at- tempts to affect that which the law forbids, his will must 3ield to the rules of law; but courts have sometimes gone further. The construction put upon words in one will has been supposed to furnish a rule for construirig the same words in other wills; and thereby to furnish some settled and fixed rules of construction, which ought to be respected. We cannot say this principle ought to be totally disregarded; but it should never be carried so far as to de- feat the plain intent, if that intent may be carried into execution without vio- lating the rules of law. It has been said truly, that caqP,1 on iills inV gile

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