The question in this case is as to the construction of the last will and testament of Abraham Miller, deceased.
The testator, among other bequests, gave to Francis D. Prouty, for the comfortable maintenance of his daughter Polly Miller during the .term of her natural life, the use of certain specified property, including both real and personal estate, and immediately following the list of property so given, is this provision : “ It is my will, and I do hereby order, that my executors, administrators and assigns, upon the decease of my daughter Polly Miller, in the division of the above named property left for her comfortable maintenance, both real and personal, do allow the said Francis D. Prouty an equal share with the male children of my daughter Tirzah, wife of Isaac Bishop, and the male children of my late daughter Almira, late wife of Dan Mather. The same I do give and bequeath unto the said Francis.”
It is in regard to the above recited clause in the will that the question arises.
There is no substantial difference between the counsel in the case, as to the general rules to be observed in the construction of wills. The intention of the testator when it can be legally ascertained, is always to govern and be carried into effect, and in ascertaining the intent, the whole instrument should be taken into consideration, and viewed in the light afforded by the situation of the party making it, the subject matter and the surrounding circumstances, and to this end the facts stated in the case as made up may properly be considered. Indeed, no question has been made in this agreement but what such facts are properly in the case.
The provision in the will above referred to is certainly very unskillfully drawn, and the intention of the testator, whatever it may have been, is very unhappily and darkly expressed therein. The difficulty in ascertaining the intent, is increased by the fact that the testator in the preceding part of the will, had given to the male *638children of the said Dan Mather, and said Isaac Bishop, naming them, the sum of $50. each.
It is claimed by the defendants that the sole intention of the testator, by the provision above recited, was to give to the said Francis the same amount that he had before given to the said male children of the said Dan and Isaac, — that is, $50. — to be paid out of the property he had devised in trust for his daughter Polly, after her death.
If such was the intention, it is astonishing that he should have adopted such a singular mode of expressing it, when a few simple words would have expressed the idea clearly and unequivocally. He had only to adopt the same language he had twice before used, in the same instrument, in giving a similar legacy to each of the male children of two of his daughters. There was no occasion to speak of it as an act to be done in the division of that part of his property that was to be disposed of after his daughter’s death, or to refer to that part of his property as being both “real and personal,” or to specify the amount as “an equal share with the male children” of his said two daughters, an expression that is in itself equivocal, leaving it somewhat doubtful whether a sum equal to that of one of such male children, or a sum equal to that of all of said male children was intended. v
Looking at the peculiar phraseology of this provision of the will, we think it quite apparent that it was not the intention of the testator thereby to give the said Francis the sum of fifty dollars only.
Taking the whole instrument together, and considering it in connection with the situation of the testator, and the surrounding circumstances, we are satisfied that it was the intention of the testator, by the ninth and tenth clauses in the will, to make a complete and final disposition of all that part of his estate which he bequeathes to said Francis D. Prouty in trust for the use of his daughter Polly.
It seems to us that the language used is consistent with no other idea. The clause under consideration contemplates a division of all such property, “both real and personal,” after the death of said Polly, and directs his executors in such division to allow the said Francis D. an equal share with the male children of his daughters, *639Tirzah and Almira. It is very evident that the property referred to as that which was to be divided, and which the said Francis 1). was to share equally with the said male children, was the property the use of which the testator had in the preceding clause appropriated to the maintenance of his daughter Polly; and it seems to us that the only rational and consistent construction that can be put upon this clause, is that the testator, by it, intended to make a final disposition of all of that part of his property, by directing a division of it between the said Francis D. and the male children of his said two daughters. The clause is very unskillfully and blindly expressed even for that purpose, but this construction makes it consistent with itoelf, and all the other parts of the will, while any other construction makes a large part of it a collection of unnecessary and useless words.
That there is to be a division of this property is clearly indicated, and the persons between whom it is to be divided we think are also indicated, — that is, between Francis D. Prouty and the male children of the said two daughters, — and that in such division the said Prouty is to have an equal share with such children; not a share equal to that of the male children of each of the two daughters, but a share equal to that of each of the male children of the two daughters, — the said Prouty and the said children taking the whole in equal proportions according to the whole number.
The last sentence in this clause of the will was wholly unnecessary, and is not inconsistent with our construction. It seems to show the unskilfulness of the person who wrote the will, rather than the intention of the testator.
There is nothing unnatural or unreasonable in the bequest to Prouty. It is true he was not related to the testator by blood, but he was the son of his wife by a former husband, had long resided in his family, and secured his affection and confidence, as is evidenced by the fact that he made him the trustee of this property for the benefit of his daughter, and of his wife if she chose to reside on the farm with his said daughter, thus casting upon him considerable care and responsibility, — and in this view the bequest seems not only reable, but just.
We are not able to discover in the language of the will, or in the *640surrounding circumstances, anything that would warrant us in putting the construction upon this clause of the will that is claimed by the counsel for the plaintiff. The intention is apparent that Prouty was to share equally with the said male children, and each of the male children was to share equally with him, and with each other.
The judgment of the county court is affirmed. As both parties excepted and neither has prevailed, neither will take costs in this court.
Result to be certified to the probate court.