BENTON v. BENTON

W. H. Cotton (Shirley Stone with him), for the plaintiff. The widow claims to take all the personal property under the third clause, subject to the several bequests which follow; that is, she claims that she is a residuary legatee. The will, under this construction, is full of repugnancies and absurdities. If she took this property by the third clause, the fourth clause is useless. If she has any right under the fourth clause to the principal except in the contingency named, it is the right of a childless woman to receive between $20,000 and $30,000 after her death. The sanity of the testator might well be doubted if he devised away the bulk of his property with a proviso that the devisee should not take it until after her death.

When general and specific expressions stand immediately associated together, the general terms are sometimes restrained to articles ejusdem generis. 1 Jarm. Wills 605. The context in the third clause answers these conditions in an unusual degree. The testator begins the description of the property, which he intends to dispose of by this clause, with the use of the general term "household furniture." There is an evident desire throughout to give to the wife everything which had made a part of their home life and daily associations. In furtherance of this purpose he adds to the general description a specification of "piano, books, minerals, shells, and curiosities," "including" these in the term "household furniture," and in close connection with these things, peculiarly pertaining to home and its ornamentation, as a part of the same thought, "every article of personal property in and about said homestead, or wherever found." Now the specific words could not to the testator's mind — of which this will is the minor — add anything to the range of the bequest, if he understood that the general terms which he embodied in the clause covered the entire personal property. They would have been meaningless and useless verbiage. If he intended to give his wife all the property, he would have said so without any specific enumeration. It would seem clear, from a view of the entire clause, that he used the term "every article of personal property," c., in the limited sense of ejusdem generis. Timewell v. Perkins, 2 Atk. 103, 104; Hutchinson v. Pough, 40 L. T. N. S. 289; Dole v. Johnson, 3 Allen 364; Johnson v. Goss, 128 Mass. 433. It is commonly considered that this construction is favored by the circumstance that specific or pecuniary legacies are given by the will to the same or other parties. 1 Jarm. Wills 606; Rawlings v. Jennings, 13 Ves. 39. This will is full of this kind of confirmation of the restricted construction of the third clause.

The fourth clause gives the wife the use and income of his railroad stocks, government and other bonds, during her natural life, this species of property making at least five sixths of the entire personal estate. The principal sum is not to be impaired by her if the interest and income is sufficient to support her in a generous manner, and then only by the authority of both executors. This is a most significant provision. It shows that the testator, while desiring to do everything that a man ought for his wife, foresaw the danger to the other objects of his bounty, and so prohibited her from trenching upon the principal without the consent of the other executor. The testator then proceeds to give to some thirty or more other beneficiaries under the will the sum of $9,550 in the eight succeeding clauses, exclusive of the eleventh and fifteenth, which relate to the real estate. The repugnancy is not only so manifest, but also so general — eight independent clauses, reiterating eight times over the real intention of the testator, the real plan of disposition which occupied his mind at the precise time — that it cannot be argued that he intended to dispose of his whole personal estate to the wife in the third clause, and overlooked, or forgot, his intention in the subsequent provisions. This argument seems to be clinched and riveted when there is a general residuary clause such as appears in this case. The wording of this clause is quite significant: "Lastly, after the decease of my said wife, Susan A., and in the final disposition of property," c. Final disposition of what property?

The real estate is finally disposed of by the second, eleventh, and fifteenth clauses of the will beyond any question. Under the defendant's construction, the personal estate is already finally disposed of by the third clause, and the others preceding the residuary clause. What was then left for this residuary disposition, very comprehensive in its terms and imposing in its appearance, to operate upon? Why the use of the term "final," as though he considered that he had, up to that point, made no final disposition of his personal estate? Why a residuary clause at all, if the wife was intended as residuary legatee?

The following represents the scheme in the testator's mind, if the defendant's construction is adopted: 1. The entire personal property is given to Susan A. absolutely. 2. The use and income only of the same property, or about five sixths of it, is given to her for the term of her natural life. 3. One fourth, or nearly one third, of the same property is given to thirty other legatees in succeeding clauses. 4. The residue of the estate, which has already been exhausted twice, is given to the nephews and nieces as a final disposition of the testator's estate. By the residuary clause, he meant something beneficial to the donees. Wallace v. Wallace, 23 N.H. 149; Perkins v. Mathes, 49 N.H. 107.

In the third clause he provides expressly that whatever the widow takes under that provision is to be hers in such way that she can hold it without an invoice, and dispose of it as she may desire. He did not intend this to apply to the entire personal estate or to the general residue, for that would make the residuary clause an empty thing.

C. A. Dole, for Susan A. Benton. If Mrs. Benton does not take the $3500 and bank share, under the third clause, then it remains in the hands of the executors until her decease, for it is not otherwise bequeathed, as the residuary clause takes effect only upon her decease. Now, taking the third clause separately, what is bequeathed by it? The word "article" means part, portion, or item of a whole. "The fundamental idea of an article is that of an object comprising some integral part of a complex whole." See Worcester's Dict. The testator uses the word in that sense when he says "every article of household furniture," meaning every item or thing that goes to make up or can be classed under the head of household furniture. He then seems to have had some doubt as to whether certain things would be classed under that head, and therefore adds, "including piano, books," c. Then he further adds, "and every other article of personal property, in, on, and about said homestead, or wherever found, belonging to my estate."

The words "every other" and "or wherever found belonging to my estate," remove any limitation as to character or locality. And substituting the above definition of article, the clause would read, "and every other part or portion of the property in, on, or about said homestead, or wherever found, that constitutes my personal estate." A person not a lawyer, and not familial with the many nice and discriminating decisions, giving construction to particular words when used in a will, would rarely have been as fortunate as the testator in his choice of language covering all his personal estate. So we say the third clause, taken separately, is sufficiently definite and intelligible; and we say the same as to the fourth and fifth, ninth, thirteenth, fourteenth, and other clauses of the will, and these last specified clauses are contradictory to the third clause. This brings the case under the rule of construction where there is "repugnancy or contradiction between the several parts of a will, though each part taken separately is sufficiently definite and intelligible." It is an established rule "that where two clauses or gifts are irreconcilable, so that they cannot possibly stand together, the clause or gift which is posterior in local position shall prevail, the subsequent word being considered to denote a subsequent intention. * * * If a testator in one part of his will gives to a person an estate of inheritance in lands, or an absolute estate in personalty, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a life interest only, the prior gift is restricted accordingly." 1 Jarm. Wills 472.

By this rule the absolute gift by the third clause, so far as it relates to the railroad shares and bond is restricted by the fourth clause to a life interest. "But the rule which sacrifices the former of several contradictory clauses is never applied, but on failure of every attempt to give the whole such a construction as will render every part of it effective. In the attainment of this object the local order of the limitations is disregarded, if it be possible, by the transposition of them, to deduce a consistent disposition from the entire will. * * * So, where a testator, after devising the whole of his estate to A, devises Blackacre to B. The latter devise will he read as an exception out of the first, as if he had said, I give Blackacre to B, and subject thereto, all my estate, or the residue of my estate, to A." 1 Jarm. Wills 475.

Construing the will in question in accordance with the above rules, and the examples given by the author under them, it would be read as though the third clause were transposed and placed after the fifteenth; in other words, the third clause would give Mrs. Benton all the personal estate restricted by or subject to the subsequent clauses; that is, she would take all the personal estate, except the railroad shares and bond, and the amounts covered by the bequests which were to be paid prior to her decease. And this construction under the rules comports with the true intention of the testator, as gathered from the whole will and from the facts stated in the case.

It is evident that the testator supposed he had fully disposed of all his personal estate, by the clauses preceding the residuary, except his railroad stock and bond, and these he considered good and safe investments, so much so that while he wished to provide for Mrs. Benton's comfortable and generous support through the income therefrom, he with much care provided that these investments should not be changed unless they failed to produce a generous return, or decreased in value, when he directed his executors to judiciously make the change, "or use such parts of the principal as may be necessary or desirable." If he had understood that there was any of his personal estate undisposed of, certainly if to the amount of $3,500, he would have first exhausted that, to make up the generous support of his wife, before disturbing his safe investments. It will be observed that the amount of the particular bequests to be paid upon the decease of Mrs. Benton is $7,850, the par value of the railroad stock and bond is about $21,000, so there could be no occasion for holding the $3,500 and bank share, nor indeed any sum in reserve, to provide for the full payment of said sum of $7,850.

W. H. Cotton and Shirley Stone, for the plaintiff, in reply. The doctrine of ejusdem generis applies to the third clause, or it does not. If it does, the only inquiry is, Can money due on promissory notes, cash on deposit or on hand, and bank stock, be classed as household furniture or in the nature of it? By no possible construction can this portion of the estate be reached except the broad one, which would convey all of the personal estate as well. It does not follow, because $3,500 and the bank share are not particularly disposed of, that Mrs. Benton takes it. One of the purposes of a residuary clause is to rake after, and take in all property that preceding provisions — logically or locally preceding — have left undisposed of. Such a clause operates upon all of the personal estate of which the testator died possessed. And this is so, even though a residuary bequest, by the failure of other provisions, becomes a gift of the whole. 1 Jarm. Wills 762.

It would seem by its wording that the testator understood the effect of this clause in his own case to be what we claim. He bequeaths "the rest, residue, and remainder of my estate, wherever found and however situate," and further on is an independent direction to the surviving executor to distribute "all my estate found and remaining in said executor's hands," to certain parties, in certain proportions. We say that not Mrs. Benton, but the residuary legatees are the parties to glean the field and take everything which has not been explicitly given to other legatees. The third clause cannot be enlarged to take in this money and bank share without putting upon it just that broad construction which would make Mrs. Benton sole residuary legatee, and entirely ignore the residuary clause, which is the most consistent part of the whole document.