The interpretation of a will is the ascertainment of the testator's expressed intention. The question is not what he meant, but what is the meaning of his words. His unexpressed intention, however shown, is immaterial. A contrary doctrine would repeal the statute requiring wills to be in writing.
Many so-called rules of construction are properly rules of law, as, for example, the rule in Shelley's case (2 Jar. Wills 241; Fear. Rem. 188; Crockett v. Robinson, 46 N.H. 454, 461), and the rule that a devisee of lands, without words of limitation, takes only an estate for life. 2 Jar. Wills 170. They are not applied to discover the intention, but to establish rights of property. Hawk. Wills, Preface vii; 4 Kent 535; Doe v. Fleming, 2 C. M. R. 638, 654. The often acknowledged and regretted defeat of the testator's intention has been due generally, if not always, to the application of rules of this character, and not to rules for finding the intention. Loveacres v. Blight, Cowp. 352, 355; Denn v. Gaskin, Cowp. 657, 659; Right v. Sidebotham, 2 Doug. 759, 763; Denn v. Mellor, 5 T. R. 558, 561; Doe v. Clarke, 2 N. R. 343, 348, 349; Denn v. Page, 1 B. P. 261 n.; Goodtitle v. Otway, 1 B. p. 576, 582; Doe v. Dring, 2 M. S. 448, 454; Langham v. Sanford, 2 Mer. 6, 24; Hodgson v. Merest, 9 Price 556, 576, 577; Byrom v. Brandreth, L. R. 16 Eq. 475, 478; Bellairs v. Bellairs, L. R. 18 Eq. 510, 517; Dorin v. Dorin, L. R. 7 H. L. 568; Cunliffe v. Brancker 3 Ch. Div. 393, 399; Harrison v. Jackson, 7 Ch. Div. 339, 341; Ellis v. Houstoun, 10 Ch. Div. 236, 241, 243. *Page 73
Rules of interpretation do not control, but are subservient to the intention. They are rejected as inapplicable wherever they "would defeat instead of promoting the object for which" they "are framed." Blundell v. Gladstone, 1 Ph. Ch. 279, 286. They always contain "the saving clause `unless a contrary intention appear by the will.'" Hawk. Wills, Preface vii. From the earliest to the latest judicial decision on the subject it has uniformly been held that to the testator's expressed intention all rules for finding it must bend. Plow. 161, 162, 413; 3 Co. 20 b; 8 Co. 95 b; Hodgson v. Ambrose, 1 Doug. 337, 341; Ralph v. Carrick, 11 Ch. Div. 873, 886; Megson v. Hindle, 15 Ch. Div. 198, 202; Kennon v. M'Roberts, 1 Wn. Va. 96, 101, 102; Roy v. Garnett, 2 Wn. Va. 9, 31. Many of them are merely the conclusion reached by reason and common sense in the cases to which they apply (1 Pow. Cont. 370), as, for example, the rules, that, if possible, effect is to be given to every word; that words having as they stand a sensible meaning consistent with the rest of the will cannot be rejected or transposed; and that they must be given their natural and ordinary significance unless it appears from the context or other evidence that they are used in a different sense. Had they never been formulated, their precepts would none the less be observed.
Many questions are questions of law in one aspect, and of fact in another. Sedg. Stat. Law 193; State v. Hayes, 61 N.H. 264, 330. That a deed must bear a seal is in one view a proposition of law, and in another a statement of fact. What the law is may be strictly a question of fact, as, for example, the law of foreign jurisdictions (Sto. Conf. Laws, ss. 637, 638), customary law (Broom Leg. Max. 882, 890; Carvick v. Vickery, 2 Doug. 653, 654, n.), and even statutory law. Opinion of the Justices,35 N.H. 579; Opinion of the Justices, 52 N.H. 622. All questions of law are in one sense questions of fact. They are determined as questions of fact by the natural weight of the evidence competent to be considered. The decisions of courts, the "works of sages in the profession," maxims, usage, and arguments drawn from necessity, convenience, or inconvenience and other sources, are evidence of the law. 1 Bl. Com. 71-73; Co. Lit. 110 b., 115 b.; Broom Leg. Max. xii, 184; 1 Kent 473, 498.
In ascertaining a testator's intention, nothing can be considered except the words of his will, and legitimate evidence tending to show what he understood them to mean. His intention, found upon competent evidence, is necessarily his expressed intention. Hence the proposition, that in the interpretation of a will the question of intention is determined as a question of fact by the natural weight of competent evidence and not by artificial rules of interpretation (Brown v. Bartlett, 58 N.H. 511; Kimball v. Lancaster, 60 N.H. 264), may be strictly accurate. But it is liable to mislead. Without "the constant explanation *Page 74 that" the intention "is to be sought in his words and a rigorous attention to them," it is "apt to lead the mind insensibly to speculate upon what the testator may be supposed to have intended to do, instead of strictly attending to the true question, which is what that which he has written means." Abbott v. Middleton, 7 H. L. Cas. 68, 114. Its design is not to abolish the standard rules of interpretation, and substitute in their place "what may, not irreverently, be called guessing as to what the words" mean (In re Ingle's Trusts, L. R. 11 Eq. 578, 587), or to propound a new canon of construction. Courts have always professed to determine the question of intention by the weight of evidence — sometimes called arguments, reasons, considerations, indicia (11 H. L. Cas. 368) or indications — deemed by them competent to be considered, and have uniformly held that to the intention shown by the evidence all rules of construction are subordinate. If, as there is some reason to believe,* the impression anywhere prevails that it lays down a doctrine of interpretation differing in any material respect from that which has always obtained, the impression is erroneous. It is intended to be, and properly understood it is, merely a concise enunciation of the doctrine, as ancient as the statute of wills, that to the intention shown by the evidence all rules for finding it must yield. Well-nigh numberless equivalent expressions are found in the reported cases. A few of them are cited in the margin.8224
The natural desire of the interpreter of a will to effectuate a just and rational disposition of the property rather than one that *Page 75 is apparently unjust and irrational, is liable to lead him to overlook the sense of the written words, and to mistake for the expressed intention what he conceives must have been the testator's intention in fact. If the language used is ambiguous, the fact that one construction leads to reasonable and another to unreasonable results is evidence, and may be decisive that the former construction truly expresses the intention. But if the language is free from ambiguity, the unequivocal meaning of the words as they stand must be given effect, however unreasonable or absurd the result may seem to be. If courts could look into the heart and mind of the testator, see with his eyes, feel as he felt, and think as he thought, provisions that appear to them unnatural and irrational would often present an altogether different aspect. Upon no subject do men differ more widely than in the disposition of their estates at their death. Many whose testamentary capacity cannot be questioned make wills that seem to be unnatural and unjust to one or more members of their families. But no one can put himself in the testator's place. No one can know the motives that actuated him; his feelings towards his wife, children, and other kindred; his views of their necessities and deservings, — or any of the multitude of considerations that might justly move him in the disposition of his estate. Any conjecture concerning them, however plausible or probable it may seem, and any finding of the intention founded thereon, or not founded exclusively upon the words of his will and evidence tending to show what he understood them to mean, are more likely to be wrong than right. Brewster v. Edgerly, 13 N.H. 275, 277, 278.
Argument drawn from the general scheme or purpose of a will, says Lord Ch. Selborne in Giles v. Melsom, L. R. 6 H. L. 24, 31, is "a perilous and hazardous argument in most cases where it is used. I do not say that there are not cases in which it may be properly used, but certainly it is an argument which seeks to escape from the necessity of grappling with the meaning of particular words upon grammatical principles, and endeavors to get into a region of speculation as to the probable intent of the testator." Here there is no room for this argument. The only general or leading purpose of the testator disclosed by the will is, to give a part of his property directly to his wife and a part to a trustee for his children. This general intent affords no aid in determining the question whether the debts are chargeable partly on the devise to the wife, or wholly on that to the children. It is equally consistent with either view.
The expression "the residue and remainder of all my estate" in the first clause cannot be construed to mean exactly the same as "the remainder of all my estate after payment of all my just debts and funeral expenses" in the second clause. If the testator intended his bounty to his wife to bear a portion of the burden of his debts, he would have inserted after "estate" in the first clause *Page 76 the words "after payment of all my just debts and funeral expenses." These words in the place where they are found are entirely without meaning if they do not charge the debts upon the devise to the children. The will cannot be construed to mean precisely the same as if these words were omitted. Reason and common sense require the application of the wholesome doctrine of the ancient rule, that effect, if possible, is to be given to every word, and would require it if no such rule existed.
In order to give to the will the effect claimed by the children, the words "after the payment of all my just debts and funeral expenses" must be either stricken out, or transposed from the second to the first clause. The court can do neither. The will is intelligible and sensible as it stands. Every word has a plain, rational, unambiguous meaning, consistent with the general tenor of the will and with all the circumstances disclosed. The testator could not have selected more apt and explicit words to express and give effect to his intention to charge his debts wholly upon the devise to his children. To reject or transpose words which as they stand have a rational meaning consistent with all the words of the will, is not expounding the will, but making a new one. Hall v. Hall, 27 N.H. 275, 288. "I do not know how we can transpose words that are good sense. If the will was nonsense, then we may transpose to make it bear a meaning; but to displace the words of the will when they are intelligible is to alter the will and the sense of it." Holt, C. J., in Cole v. Rawlinson, 1 Salk. 234, 236; 1 Red. Wills 467, 468. This rule of interpretation has been reiterated and enforced in a multitude of cases. But if it had never hitherto been heard of, it would be the duty of the court to announce the doctrine and apply it here.
The will carries internal evidence that the writer of it was acquainted with the law and with the rules of English grammar. He did not insert after "estate" in the first clause the words "after the payment of said legacy," because he knew they were grammatically superfluous. He did not insert in that clause the words "after the payment of all my just debts and funeral expenses," because he was instructed that the debts and funeral expenses were to be a charge on the devise to the children. It is incredible that for any other reason he omitted them in the first clause and inserted them in the second. He left no room for the suggestion of probabilities or for presumptions. Doubting, apparently, what meaning might be attributed to "estate," standing alone, he took care to show by qualifying words clearly and unmistakably the sense that must be given to it here.
Various extrinsic facts, as that the children are of mature age, that the wife is a second wife and not their mother, the value of the estate and amount of the debts, have been urged in argument. They are entitled to no weight. They are equally consistent with either construction of the will. It was the testator's right to *Page 77 dispose of his property as he thought best. He might have given it all to his wife. It was for him to decide what justice to her and to his children required of him. The measure of his regard for his wife and for his children, his views of their necessities and deserts, and his motives for placing his bounty to his children not in their control but in the hands of a trustee, to be doled out to them as in his judgment their needs may require, cannot be known except as they are shown by his will. Conjecture or speculation regarding them is unprofitable and dangerous. It is "better to construe a will as it is, and to assume that it is as it was intended to be." Doe v. Taylor, 10 Q. B. 718, 723.
* See Bills v. Putnam, 64 N. 554, 558, 559.
8224 Plow. 161, 162, 343, 344, 413, 522; Boraston's Case, 3 Co. 20b; Manning's Case, 8 Co. 95 b; Inchley's Case, 2 Leon. 43; Blamford v. Blamford, 3 Bulst. 98, 103, 104, 107; Spalding v. Spalding, Cro. Car. 185; Petty v. Goddard, O. Bridg. 35, 39, 40; Holmes v. Meynel, T. Jones 172; Bridgwater v. Bolton, 1 Salk. 236, 237; Cowper v. Cowper, 2 Peere W. 720, 741; Smith v. Packhurst, 3 Atk. 135, 136, Lord. Ch. Hardwicke in Bagshaw v. Spencer (2 Atk. 570) as reported in Cun. Dict., tit. Will, 8; Doe v. Laming, 2 Burr. 1100, 1112; Molyneux v. Scott, 1 W. Bl. 376-378; Roe v. Grew, 2 Wils. 322-324; Gulliver v. Poyntz, 3 Wils. 141-143; Doe v. Underdown, Willes 293, 296, 297; Lord Mansfield in Perrin v. Blake (1 W. Bl. 672 — 4 Burr. 2579) as reported in 6 Cr. Dig. 319; Blackstone, J., in the same case, 6 Cr. Dig. 321, 322; 2 Bl. Com. 381, note (13) by Christian; Hodgson v. Ambrose, 1 Doug. 337, 341, 342; Griffith v. Harrison, 4 T. R. 737, 749; Burnsall v. Davy, 1 B. P. 215, 220; Blundell v. Gladstone, 1 Ph. Ch. 279, 285, 286; Morrall v. Sutton, 1 Ph. Ch. 533, 545-551; Grey v. Pearson, 6 H. L. Cas. 61, 78, 99, 106, 108; Thellusson v. Rendlesham, 7 H. L. Cas. 429, 504-506; Comfort v. Brown, 10 Ch. Div. 146, 150; Ralph v. Carrick, 11 Ch. Div. 873, 885, 886; Dwar. Stat. 552, 553; Kennon v. M'Roberts, 1 Wn. Va. 96, 101-103; Roy v. Garnett, 2 Wn. Va. 9, 31; Smith v. Bell, 6 Pet. 68, 75, 80; Clarke v. Boorman, 18 Wall. 493, 502, 503; Giles v. Little, 104 U.S. 291, 293, 294; Blagge v. Miles, 1 Story 426, 445, 448; Jackson v. Myers, 3 Johns. 388, 395; Lytle v. Beveridge,58 N.Y. 592, 598, 599; Malcolm v. Malcolm, 3 Cush. 472, 477; Quincy v. Rogers, 9 Cush. 291, 294, 295; 4 Kent 534.