This action calls for the construction of a will and its codicils. The plaintiff's right of recovery depends entirely upon the result of such construction. Neither the will itself, nor its codicils taken in connection with it, unmistakably express the testator's intention. The ambiguities in them are apparent.
The cardinal rule of construction with respect to wills is that the intention of the testator is to be sought after and, if not inconsistent with some established principle of law, carried into effect. This intention may be gathered not only from within the instrument itself, but also from the circumstances which surrounded the testator when the will was made, including the situation and condition of his estate, his relations to his family and beneficiaries, and their situation and condition. The construing court will put itself as far as possible in the position of the testator, in the effort to construe the uncertain language used by him in such a way as shall, conformably to the language, give force and effect to his intention.
In the present case the defendant demurred to the complaint, which is barren of facts aliunde the will which might aid in its construction. The effect of this procedure is to impose upon him the burden of maintaining that the will was not susceptible of a construction consistent with the plaintiff's claims. If, under the accepted rules of testamentary interpretation, such a construction was possible, the plaintiff was entitled to have the will go to the court for its construction with such aid as might be furnished by proper evidence to be adduced by the parties. It certainly cannot be claimed for this will and its codicils, that their language is such that it would not bear reasonable interpretation in harmony with the plaintiff's contention. So far is this from being true, that even upon their face the plaintiff's position is one which might be urged, as it is, with no little force. If added force could be given by proper evidence tending to *Page 288 disclose the intention of the testator, the plaintiff was entitled to it. If, on the other hand, the evidence proved to be to a contrary effect, it was the defendant's privilege to avail himself of it. In either event the court was fairly entitled to have such aid to construction as the circumstances of the case furnished.
The demurrer was addressed to the legal effect of the will upon its face; not to the absence of any allegations in the complaint of extrinsic facts to support the construction of its provisions assumed by the plaintiff. Whether, if such facts exist, they should have been pleaded, is a point which, as it has not been presented, we do not consider.
There is error in the sustaining of the demurrer and in the rendition of judgment, and the case is remanded to be proceeded with according to law.
In this opinion the other judges concurred.