The Providence news. (Providence [R.I.]) 1891-1906, 1896-12-10
Appellate Court Renders
a Decision On II.
LegacieS of $1,000 to Go to
Grand NieceS in Dublin.
Ineresting and Important Rescript
Handed Down Today.

Mr.. Justice Stiness today handed down
the opinion OF the Appellate Court on the
construction OF a certain clause In the
will OF the late Hon. Thomas Davis. The
decision of the court is that Alice Mary
Pesrd, Henrietta Louisa Fitzgerald and
Maud Hope Fitzgerald of Dublin. Ireland
are entitled to the legacies of 1000 oscn
left by Mr.. Davis I'm his last will to such
of his neices, daughter OF his deceased
sister Mary Fitzgerald a. should survive
him. Mrs. Fitzgerald never had q caugh-
ter but she hao one son and he had three
daughters who are the parties named
above. The latter were we'll known 10
the late Mr.. Davis and they through their
counsel Benjamin N. Lapham, claimed
they were the parties the legacies were
intended to be given to.
After reciting tho statement made in
the petition to the court that the fact
above noted concerning the grand child
rem of Mrs. Fitzgerald, the opinion which
is an interesting one is as follows:
"wbile this fact makes IL most surprising
that the will should have been drawn as
1t was, 1t also shows, upon the presump-
tion that the testator did not intend .
sham or nullity, that there must have
been q mistake in the description. 1t is
argued on behalf of the residuary legatee
that, 90 the persons described in the will
DO not exist, q construction in favor Of
the claimants, the grand nieces' would re
q reconstruction of the will.
''There can he no doubt that the inten-
tion OF a teststor 10 to be gathered from
the will and that extrinsic facts cannot
De received to vary the term OF the will
when they are clear. Gases cited.) But
IL Is also we'll settled that . misn omer Of .
leestes or deyisee IL immsterisl IL the
person Intended ssn be identified by the
description 10 the VIII. (Cssea cited
Applying these rules 10 the case at bar.
We think that the will makes it certain
that the testator intended the bequest In
question for his grand neices, ths grand
daughtcrs OF his sister, although they
were n1isdescribed as neices and as caugb-
ters OF the sister.
"The testator pointed ont three persons,
to whom ne gave legacies, who we're
then living aud whom he distinctly had
in mind, because the legacies were to 20
only TO sucn as should survive MIN. The
three persons were females and descended
from his sister, Mrs. Fitzgerald. There
are three persons and only three who an
swer this description, and we therefore
think that 1t Is plain that these were the
persons whom hs had in nina and that
the misnomer or mtsdsscription OF them
as neices and daughters, instead Of
grand neices and grand daug hters
is immateriaI. There were no other
persons to answer such descrip-
tion, and, as agreed, the tcststor knew
this to be so. Consequently the de,crip-
!ion must have been tire result of some
mistake or slip In designation. He could
not have meant his neice, Mrs. New
comb the daughte OF another sister, for
she was ON only one, and not three, and
he would not Rave been likely to describe
her as the daughter OF Mrs. fitzgerald.
The omission OF the prefix "GrsDd" is
by no means so uncommon or unnatural
as 10 lead US to doubt that he meant the
grand peices.
sour opinion. therefore IL that Alice
Mary Peord, Henrietta Louisa Fitzgerald
and Maud Hope fitzgerald are the per-
sons to whom the lezacies OF $1,000 each
were intended to bs given by the terms
of the will. and that they are entitled to
receive tho same.