A testator by the fourth clause of his will gave a life estate in his realty to his wife, and by the seventh, the remainder in fee to his son. The ninth clause was:" In case my said son P. should die before his mother, leaving no lawful issue of his body, then, and in that case, I hereby provide, and it is my will, that as soon as may be after the decease of my said wife, M., that the executor of this my last will shall cause the same to be carried into immediate effect." By the tenth and eleventh clauses a disposition of the realty was made, quite different from that contained in the fourth and seventh clauses. It appearing from the whole will that the testator's object was, 1st, to provide for his widow and son; and 2d, to provide for the contingency of the son's dying without leaving issue and before the widow: Held, that the tenth and eleventh clauses were to be construed as subordinate to the fourth and seventh. Held, further, that so much of the ninth clause as follows the words "I hereby provide," was to be treated as a parenthesis, and that the will was to be construed as if the tenth and eleventh clauses immediately followed these words.
DURFEE, C.J.
We think the tenth and eleventh clauses of the will were intended to come into operation only in case the testator's son Phinehas should die in the life time of his mother, leaving no issue. The fourth clause gives the mother the real estate for life. The seventh clause gives it in remainder to the son in fee simple. The real estate would be absolutely disposed of by these provisions if there were no others. The will does contain other provisions relating to the real estate. They are contained in the ninth, tenth, and eleventh clauses. The ninth clause is as follows, to wit:
"In case my said son, Phinehas Potter, Jr., should die before his mother, leaving no lawful issue of his body, then and in that case, I hereby provide, and it is my will, that as soon as may be after the decease of my said wife, Mehitable Potter, that the executor of this, my last will, shall cause the same to be carried into immediate effect."
The tenth and eleventh clauses contain no express reference to the preceding clauses, but devise the real estate absolutely to certain persons, and are entirely inconsistent with the fourth and seventh clauses unless they can be subordinated to them. We think they should and can easily be so subordinated. The ninth clause is apparently defective. It is, taken by itself, futile. We must look into its connections with other parts of the will to find its import. If we look at the will as a whole we find that the leading object of the testator was to provide for his widow and son. But subordinate to this object he appears to have had another, dependent on the contingency of the son's dying before his mother, leaving no issue, namely, in that event, to make provision for certain other persons out of property otherwise given absolutely to his son. This appears in the eighth clause in respect of certain personal property which in the event of the son's dying before his mother without leaving issue, is given over to the son's mother and wife. Then comes the ninth clause, which apparently contemplates a further development of the same design. It says, "in case my said son, Phinehas Potter, Jr., should die before his mother, leaving no lawful issue of his body, then and in that case, I hereby provide," but, instead of "providing," it breaks off with a digressive direction to the executor to carry his will into effect as soon as may be after the decease of his wife. Then follow the tenth and eleventh clauses which, taken independently, by themselves, are anomalous. But suppose we take them in connection with the ninth clause, then, the direction to the executor being regarded as a parenthesis which interrupts without permanently arresting the flow of testamentary thought, the tenth and eleventh clauses are brought into immediate connection with the words "I hereby provide," and constitute the provision which the testator intended, subject, however, to a qualification which the direction to the executor shows the testator had in mind, but which he did not express, namely, that the devises contained in the tenth and eleventh clauses are subject to the life estate of the widow. The will so construed becomes consistent in all its parts. We think it should be so construed. It follows that the devisees under the tenth and eleventh clauses take nothing, inasmuch as the contingency on which these clauses were to become operative has never occurred; for the son, though he died without leaving issue, did not die before his mother. The testator seems to have intended that, if the son should survive the mother, the real estate should go to him untrammelled by any devises over.
Let the decree be entered in accordance with this opinion.
Decree declaring that the tenth and eleventh clauses could take effect only if Phinehas, Jr., died in his mother's life time and without issue, that the contingency on which these clauses were to become operative never arose, and that Harriet L. Potter, individually and as trustee, is entitled to the rents and to the fund paid into the registry of the court.