The real question in this case is, whether, under the provisions of the will, the appellant is entitled to a distributive share of the "intestate estate." Its determination involves the construction of that instrument. In Shepard's Heirs v. Shepard's Estate, 60 Vt. 109, 14 A. 536, this Court said: "All the principles of construction are only aids in ascertaining, with certainty, the intention of the testator as found in the will itself. When that intention, if lawful, is once ascertained, it is the duty of the court to declare and enforce it. One of the most helpful principles of construction in ascertaining the intention of the testator is, to give force and effect to every clause of the will. It is not to be presumed that he used an unnecessary word, or one to which no proper force can be given." In Richardson v. Paige, 54 Vt. 373, it is said that in giving construction to a will, the intent of the testator is to be ascertained and followed. The fact that the appellant is a co-heir at law with his brother and sister, and as such stands as one of the three persons to whom, in equal shares, the estate of inheritance would ordinarily descend, is not conclusive of the legal consequence for which he contends in this case.
The gift to Julius M. and Evelyn P. as contained and set forth in the first and second paragraphs of the will in question, is by the third paragraph to "be given and received by" them "in full of all rights and legacies to which they might be entitled, according to the laws of descent, or otherwise," at testatrix's death. Plainly this latter clause constitutes a condition which evidently was intended by the testatrix so to attach to the gift of the former clause as to be a part of it and to control the terms on which it was made by her and to be accepted by the beneficiaries. In Chaplin v. Doty, 60 Vt. 712, 15 A. 362, it is said to be "an elementary rule of construction that an absolute gift in a will, will not be defeated by a subsequent repugnant clause. If the subsequent clause is plainly a qualification or condition, which evidently was intended by the testator to be read as part of the preceding clause, the rule is *Page 412 different. It makes little difference in the construction whether the granting clause itself is in form conditional; or the condition is annexed to a clause in form absolute. The test is, what did the testator mean by the language he uses." To the same effect is Executors of Judevine v. Judevine, 61 Vt. 587,18 A. 778, 7 L.R.A. 517. And if, as in the instant case, it be plain that the subsequent clause was evidently intended by the testator as a qualification or condition to be read as a part of the preceding clause, it must be so read. Conant's Ex'rs v. Palmer,63 Vt. 310, 21 A. 1101.
Included in the testatrix's power to give, she had the right to withhold or to fix the terms of her gift, provided only that they be not contrary to public policy, or otherwise in violation of law. 28 R.C.L. 310; Magee v. O'Neill, 19 S.C. 170, 45 A. 765;Holmes v. Connecticut Trust Safe Deposit Co., 92 Conn. 507,103 A. 640, L.R.A. 1918E, 368; In re Holbrook, 213 Pa. St. 93, 62 A. 368, 2 L.R.A. (N.S.) 545, 110 A.S.R. 537, 5 Ann. Cas. 137. The terms of the gift made were not subject to such objection, and no such objection has been interposed.
In his supplemental brief appellant, referring to the will, says "it is clear that" the testatrix "intended to give to her son Julius, or in case of his decease to his wife Evelyn, the legacy therein expressed, and it is equally clear that she intended to deprive them and each of them of all further participation in her estate, but did she, either in express terms or by necessary implication, intend to dispose of all her estate by this will? Certainly not." In this connection appellant says it appears from the third paragraph of the will that she had other estate to which she understood that Julius and Evelyn might be entitled under the law or otherwise, at her decease, "and it is to this estate that her attempted disinheritance of her heir at law Julius applies."
The gift by will to the appellant being upon the condition annexed thereto, he had a right to accept it as affected by the condition, or to reject it and stand upon his rights under the statutes of descent and distribution. He had the choice between those two inconsistent rights, for it clearly was the intention of the testatrix that he should not enjoy both. Meech v. Meech'sEstate, 37 Vt. 414; Well's Estate v. Congregational *Page 413 Church, 63 Vt. 116, 21 A. 270; In re Blackmer's Estate, 66 Vt. 46, 28 A. 419; 28 R.C.L. 328, 329.
The record contains nothing showing non-acceptance of the gift by the appellant, and none is claimed in his behalf. As this question stands, the law applicable thereto is stated as follows: "The rule is that prima facie, every estate, whether given by will or otherwise, is supposed to be beneficial to the party to whom it is given. And the estate so given being for his benefit, he is presumed to assent to it until the contrary appears."Church's Exr. v. Church's Estate, 80 Vt. 228, 67 A. 549; Harris v. Harris's Estate, 82 Vt. 199, 72 A. 912. The appellant having accepted the gift under the will, — quoting further from the Church Case, — "he thereby in legal effect assented to all the terms and conditions annexed to it, and yielded every right inconsistent with such terms and conditions. One who accepts of a devise or bequest does so on condition of conforming to the will, and is bound to give full effect to that instrument so far as he can, whether the testamentary provision accepted be in lieu of some right, or as a mere bounty. No one is allowed to disappoint a will under which he accepts a benefit." See, also,In re Lawrence's Will, 93 Vt. 424, 108 A. 387.
The foregoing holdings as to the appellant's acceptance of the gift, and as to the effect of such acceptance upon him in law, are decisive of the case, and render unnecessary the consideration of further questions presented in his briefs.
Decree of distribution of the probate court is affirmed. Letthe appellee recover its costs in this Court. To be certified tothe probate court. *Page 414