Arnold v. Richardson

Duckworth, Chief Justice,

concurring specially. I fully concur in the opinion by the majority, but I think there is another solid reason why the wife of a grandson can not take. However much our decisions may appear to conflict on other rulings, there is no conflict in the holding that the intent of the testator, if discoverable, must control. This testator left no doubt of his intention that none but “grandchildren” could take where a child died without children him or her surviving. This could only mean that without a surviving child, even though his child had a dozen deceased children who left either a wife or husband, none of the estate could go to such person or persons. It is unreasonable to attribute to the mind that thus expressly excluded such spouses of grandchildren an intention that as to his children dying with one child surviving him and one predeceasing him, a complete about-face was intended so as to give the wife of a non-surviving grandchild a part of the estate. When making his will he could not foresee which of his three children would have children him or her surviving. Therefore, the conclusion is irresistible that he intended all to be treated alike, hence only grandchildren, and not their wives or husbands should take. He even spelled out his intention when he said it was his intention that his children and grandchildren should take.