The Bedford gazette. [volume] (Bedford, Pa.) 1805-current, 1855-03-16
Moot Coura--Case stated.

Moot GOgare--Gase stated.
81 will that my heirs viz Barbara, Margaret,
Rachael, Catherine, and my son George, and my son
| Thomas and my son Ahchael's heirs, viz Abraham
and Thomas all TO share aud share alike, out of the
money due my estate, except my 500 George, who
is 10 have three hundred dollars than an equal
portion OF the rest oil my heirs for labor over age
QcrSroN-Are Abraham and Thomas, the two
grandchildren, each entitled 10 unequal share with the
sons aud daughters OF the Testaor2
COUNSEL FOR PLAlNTlFF-SnAvN BAN
NAN and FyAN.
FOR DEFENDANT-HALL, BARCLAY and srANa.
| The charge of the Court delivered by
BLODGET JOHN A. JUSTICE.
Great latitude has always been allowed TO Courts
in The construction of the nranng OF words and sem
fences nsed by tesfators in their wills Wills often
drawn when the tesiators in extremity and with
out the aid OF proper advice and assistance; II IS
there wonder that difficulties frequently
rise arriving al the true meaning and intention OF
! the tesIatoT.
! II is laid down by all the authorities ancient and
modern, that the construction of VIII aust be ''a-
greeabe to the lnienfon OF the teStafor, and that
the s"inteuion mus; be collected irorn the whole wall. =.
The .poiicy OF the aw,' (as it is caed) has furnish
eG exceptions lass rule declaring that the lBteh-
tion Of the te>tator, shall IN all cases, EXcEP-
where the of law 0rerr1fes the intention,
| viz: Where the devise would make a rERFEruIrY (:
Where il would puf the freehold IN abeyance Where
chaites are limited intertances, and where Fee
is limited a fee. Dali, 2il, Mexican, L. j.
Without anmadvertng upon the policy or Impoifcy
Of the exceptions referred to in the oreging decision,
or seeking Tor a modification contradiction OF the
rule is clear that the will in controversy is free
from any OF the legal disabilities above detailed, and
! therefore must be construed as 10 ctfectuate the
intention of the testator, CLEANED from careful con
! sidpratiun OF the whole will.
IL very apparent from the phraSeology and spirit
of the WILL that the testaors intention, 10 place
ALL cHupEEN upon RQuALITY-carryins the
principle OF egHa{fg mUch farther than II generally
carried in Pennsy sylvana-by avoiding the unjust and
invdious distinction of giving his daehters less por
tion than his sons Where the testator does make
! an apparent distinction by giving seeming prefer
ence TO George of three hundred dollars than 10
the of his heirs. he is careful o. niiiciing wound
upon the seBsbilites of the rest OF HIS children by
leaving them room to suppose that proceeded from
a greater degree OF parental regard towards his pre-
ferred son, but for the apparent preference
by distinctly declaring the three hundred dollars to
be not gff, but the payment OF debt, ''tor labor
over age.''
If the testator was so careful in accounting for
the preference given George his sisters and
brothers, would he not have been equally particular
In assigning his for giving his deceased son
Michael, his heirs, aaA5ie portion Would he not
have forth the inducing of the preference
clearly TO leave room for doubt as to his IN
! tention!
II is said that ssthe defect of will in acords shall
be supplied by the intent oil the testator' sIn wills
| the effect intent is TO be regarded than the
form.'' And again. Swords in a VIII oug ght TO re-
ceive such favourable exposition, that the intent OF
the apparent in the WILL shall be performed
| in every point and ot. Yin. ABR, lSl. 1t is said
by Chief Justice Hale that s.be meaning Of testa-
tor is be spelled by little hints and that wills
are entitled TO equitable aud benign InteIpre-
taton."
In conveyanees subsequent words may be explana-
tory OF the former but In wills the first words Go
actually guide those which follow. Mod 50.
The first words in the disputed clause of the will in
controversy are 81 will that my heirs doubtless when
the tesator used the word HEIRS, he used it the
equivalent OF and hters and meant thereby
his children, including all his and daag Siers,-
living and dead-in all seven in number. The first
words, Il VIII that my heirs,'' must be taken in
nertion with the aiteTwods 'saH 10 Share and Shf6
aAhe;'' clearly meaniag that his remaining estate.
after subtractng three hundred dollars for George
should be divided into shares giving Ento each
of his living children seventh of his estate, and
the remaining seventh that his deceased sou Michael
would have taken # living, 10 his (Mcharl's) chill
dren, Abraham and Thomas, 10 be equally divided
, between them.
E The names of ssABRAHAM and TuoMAs," children
of his deceased son s'Alchael," only inserted IN
the will, descriptive OF the persons who to
to receive ssAlichaefs share. The insertion of heiI
names only cucumber the will, having tendency to
coniound the tesators meaning, ard ought therefore
10 be rejected as surp|ussage Particularly the
words tMehaels heirs - abundantlv descriptive
preserve their rights. The clause would then reaC
!
ret, Rachael, Catherine, and my son George and ny
son Thomas, and my Mchael's heirs all To share
and share aIike.'' Here then Mchael's heirs woglt
be in but heir, entitled but one share
just seventh, the amount their father would have
taken had be survived the Testator, and that one
seventh would be subject 10 equal division be
tween them.
Words in a will may not only be rejected for tn,
purpose of arriving the intention OF the testator
but words may be sUppiied--Ihus, 'sThe Court wi
rectlly expressions, even supply proper words ~
will in order TO efectnare the intention of rhe tesla
tors'' Burr, 27S3 Here then the intention of the
testator my be rendered manifest by adding after The
conclusion Of the paragraphs these words, viz: ssM
grandsous AArabam and Thomas 10 be entitled 10 nc
other greater share than their father, my sor
Michael would have been entitled TO it hvng.''
Being morally certain that the testator so cen
templaied dIsposing OF his estate, intending 10 pre-
serve entire equality between his living chdrer
and bis deceased Michael and that he never con
templated giving INTO Michael his deceased son. oil
TO his heirs double portions We would therefore de
cree, assuming the sum be distTihsted TO be 1000
To George, for s.labor over ase,'' $500
and one seventh of 500, IN all, 500 90
To Barbara, Margaret, Rachel,
Catherine and Thomas, each, 100 90 500 90
To Ahrahem and Thomas
(Mchael's heirs) each 80, 100 90
Total, $1,000 90
The Court are not only morally convinced that the
above mode OF distribution viii carry out the intei
tion of the testator, but they satisfied that il il
in harmony with the spirit of the will, aud the al
pervadng sense of equity, justice and equality thai
characteristics it. The explanation of the preierenci
uiNa fnf aI.bea